Rel: October 16, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2026-2027
SC-2025-0482
Ex parte Alonzo Cornelius Coleman IV and The City of
Birmingham
PETITION FOR WRIT OF MANDAMUS
(In re: Angel Morales Cuin, as personal representative of the
Estate of Ricardo Morales Cuin, deceased
v.
The City of Birmingham and Alonzo Cornelius Coleman IV)
(Jefferson Circuit Court: CV-22-901939)
SC-2025-0482
BRYAN, Justice.1
Alonzo Cornelius Coleman IV, a police officer employed by the
Birmingham Police Department ("the police department"), and the City
of Birmingham ("the city") petition this Court for a writ of mandamus
directing the Jefferson Circuit Court to enter a summary judgment in
their favor on the ground that they are entitled to immunity. We grant
the petition and issue the writ.
Factual Background and Procedural History
Officer Coleman was on patrol on the night of January 15, 2022,
when the police car that he was driving struck Ricardo Morales Cuin
("Ricardo") as he was walking on Tarrant-Huffman Road in Birmingham.
Ricardo died as a result of the collision. The accident occurred slightly
after 11:00 p.m. during a rainfall. At the time of the accident, Officer
Coleman was listening to a podcast playing on his personal cell phone;
the cell phone was resting on his bag on the passenger seat. In his
deposition, Officer Coleman testified that he had recently begun his
patrol and that he had started playing the podcast when he had been at
1This case was previously assigned to another justice on this Court
before it was reassigned to Justice Bryan on June 15, 2026.
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the police station earlier. He testified that he did not see Ricardo before
the collision. The speed limit on Tarrant-Huffman Road at the location
of the accident was 35 miles per hour; as we will discuss below, there is
conflicting evidence regarding whether Officer Coleman was speeding at
the time. Ricardo was wearing dark clothing, and the coroner's report
indicates that he was intoxicated.
Ricardo's brother, Angel Morales Cuin ("Angel"), as the personal
representative of Ricardo's estate, sued Officer Coleman and the city,
alleging a claim of wrongful death against each defendant. Angel sued
Officer Coleman in both his official and individual capacities. The
wrongful-death claim against Officer Coleman was based on theories of
negligence and wantonness, and the wrongful-death claim against the
city was based on the theory of vicarious liability. Officer Coleman and
the city each moved for a summary judgment, asserting various grounds.
In relevant part, Officer Coleman and the city asserted that the officialcapacity claim against Officer Coleman is barred by State immunity and
that the individual-capacity claim against him is barred by State-agent
immunity. The city further asserted that it is not vicariously liable for
Ricardo's death because, the city said, Officer Coleman is immune. The
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circuit court entered a partial summary judgment in favor of Officer
Coleman on the wrongful-death claim filed against him in his official
capacity, concluding that that claim is barred by State immunity. The
circuit court denied the summary-judgment motion as to the wrongfuldeath claim filed against Officer Coleman in his individual capacity and
as to the wrongful-death claim against the city. In relevant part, the
circuit court concluded that Officer Coleman is not entitled to State-agent
immunity regarding the individual-capacity claim. Officer Coleman and
the city then filed a mandamus petition with this Court, arguing that
Officer Coleman is entitled to State-agent immunity and that the circuit
court erred by not entering a summary judgment on all claims.
Standard of Review
The general rule is that the denial of a summary-judgment motion
is not reviewable. However, an exception to that general rule exists here:
the denial of a summary-judgment motion grounded on a claim of
immunity is reviewable by a mandamus petition. Ex parte Turner, 840
So. 2d 132, 135 (Ala. 2002).
" A writ of mandamus is an extraordinary remedy, and
it will be 'issued only when there is: 1) a clear legal right in
the petitioner to the order sought; 2) an imperative duty upon
the respondent to perform, accompanied by a refusal to do so;
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3) the lack of another adequate remedy; and 4) properly
invoked jurisdiction of the court.' Ex parte United Serv.
Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993)."
Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998).
"In reviewing a trial court's ruling on a motion for a
summary judgment, we apply the same standard the trial
court applied initially in granting or denying the motion. Ex
parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999).
" 'The principles of law applicable to a motion
for summary judgment are well settled. To grant
such a motion, the trial court must determine that
the evidence does not create a genuine issue of
material fact and that the movant is entitled to
judgment as a matter of law. Rule 56(c)(3), Ala. R.
Civ. P. When the movant makes a prima facie
showing that those two conditions are satisfied,
the burden shifts to the nonmovant to present
"substantial evidence" creating a genuine issue of
material fact.'
"742 So. 2d at 184. '[S]ubstantial evidence is evidence of such
weight and quality that fair-minded persons in the exercise of
impartial judgment can reasonably infer the existence of the
fact sought to be proved.' West v. Founders Life Assurance
Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)."
Swan v. City of Hueytown, 920 So. 2d 1075, 1077-78 (Ala. 2005). " 'Our
review [of the circuit court's ruling on a summary-judgment motion] is
further subject to the caveat that this Court must review the record in a
light most favorable to the nonmovant and must resolve all reasonable
doubts against the movant.' " Harper v. Coats, 988 So. 2d 501, 503 (Ala.
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SC-2025-0482
2008) (quoting Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341,
344 (Ala. 1997)).
Discussion
I.
Officer Coleman and the city argue that Officer Coleman is entitled
to State-agent immunity as defined by Ex parte Cranman, 792 So. 2d 392
(Ala. 2000), and § 6-5-338(a), Ala. Code 1975.2
"[P]eace officers are afforded immunity by Ala. Code 1975, §
6-5-338(a), and the test for State-agent immunity set forth in
Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), as modified in
Hollis v. City of Brighton, 950 So. 2d 300 (Ala. 2006)
(incorporating the peace-officer-immunity standard provided
in § 6-5-338(a) into the State-agent-immunity analysis found
in Cranman). See Ex parte Kennedy, 992 So. 2d 1276 (Ala.
2008), and City of Birmingham v. Brown, 969 So. 2d 910, 916
(Ala. 2007) ('Immunity applies to employees of municipalities
in the same manner that immunity applies to employees of
the State.' (citing Cranman, supra))."
2Cranman was a plurality decision, but a majority of this Court
later adopted the Cranman standard in Ex parte Butts, 775 So. 2d 173
(Ala. 2000). In 2025, the Legislature repealed § 6-5-338 and replaced it
with § 6-5-338.1 et seq., Ala. Code 1975. The new law applies "to any
cause of action that accrued on or after October 1, 2025." § 6-5-338.4(a),
Ala. Code 1975. Because this action accrued before that date, the new
law does not apply here.
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Suttles v. Roy, 75 So. 3d 90, 94 (Ala. 2010). In relevant part, Cranman,
as modified by this Court in Hollis v. City of Brighton, 950 So. 2d 300
(Ala. 2006), provides:
"[A] State agent shall be immune from civil liability in
his or her personal capacity when the conduct made the basis
of the claim against the agent is based upon the agent's
"….
"(4) exercising judgment in the enforcement of the
criminal laws of the State, including, but not limited to, lawenforcement officers' arresting or attempting to arrest
persons[, or serving as peace officers under circumstances
entitling such officers to immunity pursuant to § 6-5-338(a),
Ala. Code 1975]."
792 So. 2d at 405 (the bracketed language is the modification added by
Hollis, see 950 So. 2d at 309).
However, there are two exceptions to State-agent immunity. Even
if a State agent's conduct falls within a Cranman category of immunity
(such as the fourth category quoted above), a State agent will not be
entitled to immunity
"(1) when the Constitution or laws of the United States,
or the Constitution of this State, or laws, rules, or regulations
of this State enacted or promulgated for the purpose of
regulating the activities of a governmental agency require
otherwise; or
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"(2) when the State agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or
under a mistaken interpretation of the law."
Cranman, 792 So. 2d at 405 (emphasis added).
A defendant asserting State-agent immunity has the initial burden
of establishing that his or her relevant conduct falls under one of the
enumerated categories of State-agent immunity established by
Cranman. Ex parte Kennedy, 992 So. 2d 1276, 1282 (Ala. 2008). If the
defendant establishes that the relevant conduct falls under a Cranman
category, the burden then shifts to the plaintiff to show that one of the
exceptions under Cranman applies. Id. In this case, the parties dispute
whether Officer Coleman's conduct is covered by a Cranman category
and, if a Cranman category applies, whether Angel established an
exception. Angel asserts that, if Officer Coleman's conduct falls under a
Cranman category, one of the exceptions would apply, i.e., that he was
acting beyond his authority at the time of the accident. Although it is
unclear, the circuit court appears to have implicitly concluded that a
Cranman category applies, because the court explicitly concluded that
there is substantial evidence indicating that an exception to immunity
applies, i.e., that Officer Coleman exceeded his authority by "fail[ing] to
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follow mandatory rules and procedures by using his personal phone to
play and listen to a YouTube video" when the accident occurred. That is,
the circuit court evidently determined that Officer Coleman had met his
burden and, thus, that the burden had shifted to Angel to show that an
exception applies.
II.
Officer Coleman and the city argue that Officer Coleman's conduct
at the time of the accident was covered under the fourth Cranman
category, quoted above. Insofar as the circuit court may have implicitly
determined that Officer Coleman's conduct was covered under the fourth
Cranman category, the circuit court was correct. As noted, under the
fourth Cranman category, a State agent is immune from liability in his
or her individual capacity when the conduct underlying the claim is based
on the State agent's "exercising judgment in the enforcement of the
criminal laws of the State, including, but not limited to, law-enforcement
officers' arresting or attempting to arrest persons[, or serving as peace
officers under circumstances entitling such officers to immunity
pursuant to § 6-5-338(a), Ala. Code 1975]." 792 So. 2d at 405 (the
bracketed language is the modification added by Hollis, see 950 So. 2d at
9
SC-2025-0482
309). Thus, this Court has incorporated the peace-officer-immunity
standard provided in § 6-5-338(a) into the State-agent-immunity analysis
found in the fourth Cranman category. Section 6-5-338(a) provides, in
part: "Every peace officer … 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." Here, the parties
dispute whether the claim against Officer Coleman arises out of "conduct
in performance of a discretionary function."
The question of what constitutes a discretionary function in this
context must be evaluated in light of the specific and unique job
responsibilities of law-enforcement officers. Officer Coleman and the
city argue that the relevant function here is the "act of patrolling" and
that the exercise of discretion is inherent in that act. Conversely, Angel
argues that a "routine patrol" is not a discretionary function under the
fourth Cranman category; he seems to contend that the relevant function
here is simply driving a car under routine, nonemergency conditions, a
common activity that ordinary people do daily. Angel's answer at 10. We
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find Officer Coleman and the city's argument on this issue to be
persuasive.
Officer Coleman and the city argue:
"The Rules and Regulations of the Birmingham Police
Department required Officer Coleman to 'constantly patrol'
the East Precinct, 'familiarize himself with the everyday
routine of people' in the East Precinct, to monitor his beat 'for
conditions requiring police attention,' to '[g]ive attention to
crime hazards,' and to 'render all necessary police service in
his assigned area' -- all of which require some degree of
judgment and discretion. …
"... The Department's Rules and Regulations allow
Officer Coleman to use his discretion in furtherance of the end
goal to 'achieve voluntary compliance with traffic laws and
regulations.' "
Officer Coleman and the city's petition at 23-24. We agree with Officer
Coleman and the city's argument insofar as they argue that "[t]he act of
patrolling naturally involves the exercise of an officer's judgment and
discretion" and requires "more than the everyday conduct of driving a
motor vehicle." Officer Coleman and the city's petition at 24. Certainly,
officers patrolling are doing more than just driving; they are persistently
exercising judgment and discretion in a manner that non-lawenforcement drivers do not. The relevant standard here is broad: "Every
peace officer ... shall have immunity from tort liability arising out of his
11
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or her conduct in performance of any discretionary function within the
line and scope of his or her law enforcement duties." § 6-5-338(a). In
light of this broad language, we conclude that the act of patrolling, which
Officer Coleman was doing when the accident occurred, is a discretionary
function and is thus covered under the fourth Cranman category, which
incorporates § 6-5-338(a). This conclusion is consistent with "our
recognition that police officers have to be accorded a high degree of
discretion in the performance of their duties." Blackwood v. City of
Hanceville, 936 So. 2d 495, 507 (Ala. 2006).
Angel cites Walters v. De'Andrea, 312 So. 3d 430 (Ala. 2020), and
Ex parte Venter, 251 So. 3d 778 (Ala. 2017), in support of his argument
that Officer Coleman's conduct is not covered under the fourth Cranman
category. However, those cases are distinguishable from the current
case. In Walters, like this case, a police officer was involved in an
automobile accident. In concluding that the police officer's conduct was
not covered under the fourth Cranman category, this Court placed
significance on the fact that the officer was not patrolling. Unlike in this
case, the police officer in Walters "admitted in her own testimony that
she had completed her patrol shift and that she was simply returning to
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her precinct to turn in paperwork, not performing any patrol duties." 312
So. 3d at 435. This Court concluded that the officer was not entitled to
immunity under the fourth Cranman category:
"[The plaintiff] contends, correctly in our view, that this
case presents a very similar situation to the one presented in
[Ex parte] Venter[, 251 So. 3d 778 (Ala. 2017),] because [the
police officer], by her own admission, was not responding to
an emergency call or engaged in the act of patrolling when the
accident occurred. Rather, she was simply returning to her
precinct at the end of her shift to turn in paperwork. As the
Venter Court observed: '[S]uch action can be characterized
only as a routine action requiring the exercise of due care.' Ex
parte Venter, 251 So. 3d at 783."
Walters, 312 So. 3d at 436.
The case cited by the Court in Walters, Venter, concerned a traffic
accident involving a firefighter; the relevant Cranman immunity
category in that case was the first Cranman category, which concerns
" formulating plans, policies, or designs." Cranman, 792 So. 2d at 405.
Regarding whether a firefighter's "patrolling" could be covered by the
first Cranman category, the Court stated:
"[A]ssuming, without deciding, that the act of 'patrolling'
could somehow be equated with formulating policy or
procedure, [the firefighter], by his own admission, was not
engaged in the act of patrolling when the accident occurred.
Rather, [the firefighter] stated in his affidavit that, at the
time of the accident, he was 'returning' to the fire department
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'after riding around assigned territory within the City of
Selma.' "
Venter, 251 So. 3d at 782-83.
In denying State-agent immunity to the defendants in Walters and
Venter, this Court placed significance on the fact that the officer in
Walters and the firefighter in Venter were no longer on patrol when the
accident occurred. Here, Officer Coleman was on patrol when the
accident occurred, and, thus, this case presents a distinct issue. Because
we conclude that discretion is inherent in the act of patrolling, Officer
Coleman's conduct is covered under the fourth Cranman category.
Walters and Venter are materially distinguishable and are not
controlling here.
Angel also cites Town of Loxley v. Coleman, 720 So. 2d 907 (Ala.
1998), but Loxley is not controlling either. In Loxley, a town employee
was driving a truck transporting prisoners when a prisoner fell out of the
back of the truck; the driver was maneuvering around potholes at the
time. The Court in Loxley stated: " '[D]iscretionary functions are
characterized by planning and decision-making, while ministerial
functions are characterized by operational tasks.' … Where the exercise
of the defendant's function requires due care, rather than difficult
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decision-making, the function is merely ministerial." 720 So. 2d at 909
(quoting Ex parte Alabama Dep't of Forensic Scis., 709 So. 2d 455, 458
(Ala. 1997)). In denying the employee immunity, this Court stated that
"trying to avoid potholes while driving a motor vehicle is a ministerial,
not a discretionary, function." 720 So. 2d at 909. However, the analysis
in Loxley must be read in the context of that case. Loxley did not concern
a police officer on patrol and whether that conduct was covered under the
broad immunity provided to peace officers. Further, Loxley was a preCranman decision that was controlled by this Court's previous
"discretionary/ministerial" distinction. As former Justice Murdock has
noted, Cranman shifted the focus of our inquiry somewhat: "In 2000, this
Court [in Cranman] attempted to articulate five defined categories
within which allegedly wrongful conduct must fit to qualify for Stateagent immunity, abandoning the general 'discretionary public function'
standard against which State-employee conduct had been measured up
until that time." Ex parte Terry, 239 So. 3d 1125, 1137 (Ala. 2017)
(Murdock, J., concurring in the result).
Under the framework established by Cranman, a court simply
examines the relevant conduct to determine whether it falls under a
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category of immunity. Sometimes that conduct may involve high-level
and "difficult decisionmaking," such as "formulating plans, policies, or
designs" under the first Cranman category. However, at other times
immunity is provided for conduct that may actually appear to be
ministerial, such as the third Cranman category, which provides
immunity for "discharging duties imposed on a department or agency by
statute, rule, or regulation, insofar as the statute, rule, or regulation
prescribes the manner for performing the duties and the State agent
performs the duties in that manner." 792 So. 2d at 405. Here, the issue
is merely whether Officer Coleman's conduct is covered by the fourth
Cranman category, as modified to incorporate § 6-5-338(a). That is, the
issue is whether Officer Coleman's "conduct [was] in performance of any
discretionary function within the line and scope of his ... law enforcement
duties." § 6-5-338(a). As discussed above, we conclude that the act of
patrolling inherently involves discretion and is covered under the broad
protection provided by the fourth Cranman category. Unlike Officer
Coleman, the town employee in Loxley was not a police officer patrolling,
an act that involves unique, job-specific judgment and discretion in which
ordinary drivers are not engaged.
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Angel also relies on Horton v. Briley, 792 So. 2d 432 (Ala. Civ. App.
2001), but Horton is distinguishable also. In Horton, the plaintiff sued a
school-bus driver who was involved in an automobile accident. The Court
of Civil Appeals succinctly determined that the school-bus driver's duties
were not covered by any of the categories of immunity described in
Cranman. Like Loxley, Horton did not concern a police officer on patrol
and, thus, is different from the current case.
III.
A.
Thus, Officer Coleman and the city met their burden of establishing
that Officer Coleman's conduct is covered by a Cranman category of
immunity, in this case the fourth category. The burden then shifted to
Angel to show that an exception to State-agent immunity applies.
Kennedy, 992 So. 2d at 1282. Angel argues, as he did before the circuit
court, that he presented substantial evidence indicating that the second
exception under Cranman applies, specifically that part of the exception
denying immunity to a State agent who acts beyond his or her authority.
Angel argues that he demonstrated that Officer Coleman acted beyond
his authority because, Angel says, he presented substantial evidence
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indicating (1) that Officer Coleman violated the police department's rules
and regulations regarding the personal use of cell phones when the
accident occurred and (2) that Officer Coleman was speeding when the
accident occurred. We will address these two arguments in turn.
B.
Angel argues that he presented substantial evidence demonstrating
that Officer Coleman exceeded his authority by violating the police
department's rules and regulations regarding the personal use of cell
phones when the accident occurred. "One of the ways in which a plaintiff
can show that a State agent acted beyond his or her authority is by
proffering evidence that the State agent failed ' "to discharge duties
pursuant to detailed rules or regulations, such as those stated on a
checklist." ' " Kennedy, 992 So. 2d at 1282-83 (quoting Giambrone v.
Douglas, 874 So. 2d 1046, 1052 (Ala. 2003), quoting in turn Ex parte
Butts, 775 So. 2d 173, 178 (Ala. 2000)). The facts regarding this issue
appear to be undisputed; thus, the issue is whether those undisputed
facts demonstrate that Officer Coleman actually violated the rules and
regulations. The circuit court agreed with Angel's argument below,
concluding that he had demonstrated that Officer Coleman had acted
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beyond his authority by "fail[ing] to follow mandatory rules and
procedures by using his personal phone to play and listen to a YouTube
video" when the accident occurred. Therefore, the circuit court concluded
that the second Cranman exception to immunity applies and, thus, that
Officer Coleman is not entitled to State-agent immunity. See Cranman,
792 So. 2d at 405 (stating that a defendant is not immune if he or she
acts "willfully, maliciously, fraudulently, in bad faith, beyond his or her
authority, or under a mistaken interpretation of the law").
In his deposition, Officer Coleman testified that, while on patrol on
the night of the accident, he was listening to a YouTube podcast on his
cell phone. When the podcast was playing on the cell phone, the cell
phone was resting on Officer Coleman's bag on the passenger seat.
Officer Coleman testified that he had started playing the podcast earlier
when he was still at the police station. Regarding personal cell-phone
use, the police department's rules and regulations prohibit an officer from
"read[ing] emails, surf[ing] the internet, play[ing] games, [using an] Ipod, post[ing] and/or read[ing] social media sites while operating a city
owned vehicle." The rules and regulations also allow an officer to use a
personal cell phone if done "in a reasonable, safe, and sensible manner."
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We conclude that Officer Coleman did not violate the police department's
rules and regulations by listening to the podcast while on patrol and,
thus, did not exceed his authority. The rules and regulations provide a
detailed checklist of prohibited actions regarding personal cell-phone use,
but those rules and regulations do not prohibit the precise conduct here.
Further, simply listening to a podcast on a phone is a passive activity
that is distinct from the more active conduct prohibited. Listening to the
podcast in this manner is tantamount to simply listening to a car radio,
which is not prohibited. Angel failed to meet his burden of showing that
Officer Coleman exceeded his authority by listening to the podcast on his
cell phone.
C.
1.
Before the circuit court, Angel also asserted that Officer Coleman
had acted beyond his authority because, Angel said, Officer Coleman was
speeding when the accident occurred. The circuit court rejected this
argument by concluding that there is no substantial evidence indicating
that Officer Coleman was speeding. Angel presents to this Court the
same argument on this issue that he made to the circuit court. Although
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the circuit court rejected Angel's argument, we may consider it as a
possible ground for denying the mandamus petition. Subject to
exceptions that are inapplicable here, when considering whether to
affirm a judgment or to deny mandamus relief, we may affirm or deny
mandamus relief on any "valid legal ground presented by the record,
regardless of whether that ground was considered, or even if it was
rejected, by the trial court." Liberty Nat'l Life Ins. Co. v. University of
Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003).3
See, e.g., Ex parte Moulton, 116 So. 3d 1119, 1133-34 (Ala. 2013)
3Liberty National states the exceptions to this general rule:
"This rule fails in application only where due-process
constraints require some notice at the trial level, which was
omitted, of the basis that would otherwise support an
affirmance, such as when a totally omitted affirmative
defense might, if available for consideration, suffice to affirm
a judgment, Ameriquest Mortgage Co. v. Bentley, 851 So. 2d
458 (Ala. 2002), or where a summary-judgment movant has
not asserted before the trial court a failure of the nonmovant's
evidence on an element of a claim or defense and therefore has
not shifted the burden of producing substantial evidence in
support of that element, Rector v. Better Houses, Inc., 820 So.
2d 75, 80 (Ala. 2001) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), and
Kennedy v. Western Sizzlin Corp., 857 So. 2d 71 (Ala. 2003))."
881 So. 2d at 1020.
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(applying the principle stated in Liberty National in the context of a
mandamus petition). Thus, we will consider Angel's argument on this
issue as a possible ground for denying the petition and allowing the
circuit court's denial of the summary-judgment motions to stand.
Citing conflicting evidence regarding whether Officer Coleman was
speeding, Angel argues that Officer Coleman is not entitled to a summary
judgment on State-agent immunity grounds because, he says, there is a
genuine issue of material fact regarding whether Officer Coleman
exceeded his authority by speeding when the accident occurred. Angel's
argument presents two considerations: (1) whether there is substantial
evidence indicating that Officer Coleman could in fact have been
speeding when the accident occurred and (2) if such substantial evidence
exists, is the question whether he was speeding a material issue that
must be decided by a jury?
2.
We first address whether there is substantial evidence indicating
that Officer Coleman could have been speeding at that time of the
accident. Angel argues that he presented substantial evidence indicating
that Officer Coleman was exceeding the 35-miles-per-hour speed limit
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when the accident occurred. Specifically, Angel cites the deposition
testimony of Officer Omar El-Husari, an officer with the police
department who investigated the crash. Officer El-Husari testified that
Officer Coleman told him that he was traveling "about 45 -- or 40 to 45
[miles per hour], not faster." Angel also relies on the body-camera footage
of an "Officer Tolliver," a police-department officer who responded to the
accident. When Officer Tolliver asked Officer Coleman how fast he was
driving, Officer Coleman at first said that he did not know, but he then
stated that he thought he "was doing maybe 40 [miles per hour]." On the
other hand, Officer Coleman and the city note that Angel's accidentreconstruction expert, Kelly Kennett, testified that, in reconstructing the
accident, he "[did not] have any evidence that [Officer Coleman] was
speeding" and that "the evidence does not support [a finding of] excessive
speed." However, later in his deposition, Kennett testified that the
calculations that he used in reconstructing the accident revealed "an
average indicated speed of thirty-five and then a range from thirty to
forty-one," indicating the possibility that Officer Coleman could have
been speeding. In his deposition, Officer Coleman at first testified that
he did not know how fast he was going as he approached the scene of the
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accident. When asked in a follow-up question if he could "bookend" how
fast he was going, Officer Coleman testified that he was traveling
"somewhere around 35 [miles per hour]."
Conflicting evidence exists regarding whether Officer Coleman was
speeding when the accident occurred. Officer El-Husari's testimony and
Officer Coleman's statement recorded on the body-camera footage
constitute substantial evidence indicating that Officer Coleman could
have been speeding. Further, Kennett's testimony providing a range of
speeds at which Officer Coleman may have been traveling indicates that
he could have been speeding. This evidence is "of such weight and quality
that fair-minded persons in the exercise of impartial judgment can
reasonably infer" that Officer Coleman was speeding when the accident
occurred; thus, this evidence constitutes substantial evidence that would
support a finding of speeding. West v. Founders Life Assurance Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989). Accordingly, the circuit court
incorrectly concluded that there is no substantial evidence that would
support a finding of speeding.
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3.
We next address whether the existence of substantial evidence
indicating that Officer Coleman may have been speeding when the
accident occurred creates a material factual issue that must be resolved
by the trier of fact. Put another way, even if a jury were to find that
Officer Coleman was speeding, we must consider whether that finding
would deprive Officer Coleman of State-agent immunity. Angel argues
that, if a jury were to find that Officer Coleman was speeding, he
exceeded his authority by speeding and, thus, would not be entitled to
State-agent immunity. As noted, even if a State agent's conduct falls
within a Cranman immunity category, an exception to State-agent
immunity exists for conduct committed beyond a State agent's authority.
Cranman, 792 So. 2d at 405. In evaluating whether a State agent acted
beyond his or her authority, "there must be a fact-intensive inquiry into
whether a relevant guideline leaves room for the exercise of any
discretion or professional judgment by the [State agent] in relation to the
particular circumstances with which the [State agent] may be
presented." Ex parte Ingram, 229 So. 3d 220, 229 (Ala. 2017) (plurality
opinion). Under the particular facts here, we conclude that, even if a jury
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were to find that Officer Coleman was speeding, the acting-beyondauthority exception would not apply. We have already concluded that
the act of patrolling cloaked Officer Coleman in State-agent immunity.
At most, Officer Coleman was driving slightly above the speed limit late
at night while on patrol; we decline to conclude that a finding of speeding
under the specific circumstances here would strip him of State-agent
immunity.
Tellingly, Angel's own accident-reconstruction expert, Kennett,
testified that the accident most likely occurred because Officer Coleman
was distracted, not because of the speed he was driving. As noted,
Kennett testified that the "evidence does not support [a finding of]
excessive speed on the part of Officer Coleman." When Kennett was
asked whether he "believe[s] this accident occurred because [Officer
Coleman] was distracted while driving," Kennett agreed and explained
that his conclusion was based on the time and distance that Officer
Coleman had to react given the speed he was traveling. Kennett stated
that, given "all of the evidence and even [Officer] Coleman's own
testimony … that he [did not] see [Ricardo] until the impact [had]
occurred … plus the modest or, you know, appropriate speed for the road,
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that's kind of how you get to the only leftover possibility, [which] is some
form of distraction." He testified that "the most likely probability is one
of distraction." Even if a jury were to decide that Officer Coleman was
driving slightly above the speed limit, that would not be a material issue
sufficient to deprive Officer Coleman of immunity given the
circumstances here, including testimony from Angel's own expert about
the relevance of Officer Coleman's speed in this case.
Our conclusion is further supported by this Court's decision in Ex
parte City of Montgomery, 272 So. 3d 155 (Ala. 2018). In Montgomery,
a police officer was involved in an automobile accident while responding
to an emergency dispatch. After activating her emergency lights and
sirens, the officer attempted to cross a large intersection against a red
light. Before she entered the intersection, the vehicles traveling in the
two lanes closest to the officer stopped to allow her to cross. Although
the officer's view of the third lane was blocked by the vehicles stopped in
the first two lanes, she proceeded through the intersection, and she
collided with a vehicle traveling in the third lane.
After concluding that the police officer had satisfied the
requirements of § 32-5A-7, Ala. Code 1975, concerning the use of an
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emergency vehicle, the Court in Montgomery addressed the plaintiff's
argument that an exception to State-agent immunity applied because,
the plaintiff said, the officer had exceeded her authority.4 Specifically,
the plaintiff argued that the officer had exceeded her authority by
violating her "police training." 272 So. 3d at 168. The Court noted that
the officer had "admitted that she had violated her police training by
entering the third lane of the intersection without knowing that the
traffic in that lane had stopped." 272 So. 3d at 167. The Court also
observed that the officer had admitted that the City of Montgomery had
concluded that she was "at fault" for the collision. Regardless of those
admissions, this Court concluded that the officer
"was engaged in a discretionary act (proceeding through an
intersection while responding to an emergency dispatch) that
is regularly performed by police officers who are carrying out
their law-enforcement duties. Even assuming [the officer]
violated her police training while exercising her discretion,
she did not act beyond her authority in attempting to slowly
proceed through an intersection, with the emergency lights
and siren activated on her patrol car, in response to an
emergency dispatch."
4Section 32-5A-7(a) provides that "[t]he driver of an authorized
emergency vehicle, when responding to an emergency call or when in the
pursuit of an actual or suspected violator of the law or when responding
to but not upon returning from a fire alarm, may exercise the privileges"
established in that section "subject to the conditions" stated in that
section.
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272 So. 3d at 167-68.
In Montgomery, the conduct that was allegedly done beyond the
officer's authority directly resulted in the accident. Although the officer
admitted that she had been found at fault for the collision and that she
had violated her police training in taking the action that caused the
accident, she did not exceed her authority under the second Cranman
exception. In this case, Angel argues that, if a jury were to find that
Officer Coleman was speeding, he exceeded his authority and, thus, does
not have State-agent immunity. However, Angel's own expert testified
that the accident most likely occurred because Officer Coleman was
distracted, not due to the speed he was driving. That is, the conduct at
issue here is much more tangential to the accident than the conduct in
Montgomery was to the accident in that case. Given that the officer in
Montgomery was entitled to State-agent immunity, Officer Coleman
should be as well. Under the specific facts of this case, even if Officer
Coleman was slightly speeding while on patrol late at night, that would
not deprive him of State-agent immunity.
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Conclusion
We conclude that the act of police patrolling is a discretionary
function and is thus covered under the fourth Cranman category of Stateagent immunity, which incorporates § 6-5-338(a). Because Officer
Coleman was patrolling at the time of the accident underlying this action,
his conduct is covered under the fourth Cranman category. The circuit
court erred by concluding that Officer Coleman acted beyond his
authority and thus that the second exception to immunity under
Cranman applies. Regarding that exception, the circuit court erred by
concluding that Officer Coleman violated the police department's rules
and regulations; Officer Coleman was not acting beyond his authority in
the personal use of his cell phone on the night of the accident.
Substantial evidence exists that would support a finding by a jury that
Coleman was speeding when the accident occurred; however, even if he
was speeding, the beyond-authority exception would not apply under the
specific facts of this case. Officer Coleman is entitled to a summary
judgment on the ground of State-agent immunity. Because Officer
Coleman is immune, the city is also immune and entitled to a summary
judgment in its favor as well. See City of Bayou La Batre v. Robinson,
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785 So. 2d 1128, 1131 (Ala. 2000) ("[U]nder principles of vicarious
liability, where a municipal employee enjoys immunity, the municipality
likewise is immune as to claims based on the employee's conduct.");
Hollis, 950 So. 2d at 306 ("[I]f Officer Davis is immune, then so is the
City, which employed him.").
PETITION GRANTED; WRIT ISSUED.
McCool, J., concurs.
Cook, J., concurs in part and concurs in the result, with opinion,
which Wise and Parker, JJ., join.
Shaw and Sellers, JJ., concur in the result.
Mendheim, J., dissents, with opinion, which Stewart, C.J., joins.
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COOK, Justice (concurring in part and concurring in the result).
I concur with the main opinion's analysis and conclusion in Part II
of the "Discussion" section that Officer Coleman and the city met their
burden of establishing that Officer Coleman's conduct is covered by the
fourth category of immunity provided in Ex parte Cranman, 792 So. 2d
392 (Ala. 2000), as modified by this Court in Hollis v. City of Brighton,
950 So. 2d 300 (Ala. 2006). As explained in the main opinion, because
Officer Coleman and the city met their burden, the burden then shifted
to Angel to show that an exception to State-agent immunity applies.
I. Whether Angel Met His Burden of Showing that An Exception to
Immunity Applied
Angel argues that he presented substantial evidence indicating
that the second exception under Cranman -- denying immunity to a State
agent who acts beyond his or her authority -- applies here. I concur with
the main opinion's analysis and conclusion in Part III.B. that Angel failed
to meet his burden of showing that Officer Coleman exceeded his
authority by listening to the podcast on his cell phone. However, I
disagree with the main opinion's reasoning underlying its conclusion in
Part III.C. that there is a genuine issue of fact as to whether Officer
Coleman was speeding when the accident occurred. As I explain below,
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because Angel's own expert agrees that Officer Coleman was not
speeding, the main opinion need not go any further. Moreover, I fear that
the additional analysis in the main opinion on this issue may cause
confusion, and it is for this reason that I concur in the result.
A. Angel's Expert Agrees There Was No Evidence of Speeding
As noted in the main opinion, Angel's own expert provided no
evidence that Officer Coleman was speeding at all, much less whether his
speed was the cause of the accident. Specifically, Angel's expert, Kelly
Kennett, testified that the "evidence does not support [a finding of]
excessive speed on the part of Officer Coleman." (Emphasis added.) He
further testified that, in reconstructing the accident, he "[did not] have
any evidence that [Officer Coleman] was speeding." (Emphasis added.)
In their petition for a writ mandamus, Officer Coleman and the city
specifically argue that this testimony by Kennett "forecloses" any
argument by Angel that any alleged speeding by Officer Coleman
provides an exception to immunity in this case. See Petition at 26 ("The
testimony of the estate's own accident reconstructionist forecloses such
an argument. (Att. C-7 at 33:21 to 34:4).").
Moreover, in its summary-judgment order, the trial court agreed
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with Officer Coleman and the city when it expressly stated that it found
Angel's argument regarding speeding unpersuasive in light of Kennett's
testimony. Specifically, the trial court wrote:
"Given the testimony from [Angel's] own accident
reconstructionist, this Court finds [Angel's] allegation that
Officer Coleman was speeding, as wholly unpersuasive.
[Officer Coleman and the city] have therefore made a prima
facie showing that Officer Coleman was not speeding, and
[Angel] has not offered substantial evidence that Officer
Coleman was speeding."
(Emphasis added.)
Despite this specific argument by Officer Coleman and the city
regarding Kennett's concession and despite the trial court's conclusion on
this same issue, Angel provides no response to Kennett's admissions in
his answer to the petition for a writ of mandamus.
Given the admissions by Angel's expert and the trial court's own
determination that Angel's position was "unpersuasive" in light of that
testimony, I do not agree with the main opinion that there is "substantial
evidence that would support a finding of speeding" and that the trial
court, therefore, "incorrectly concluded that there is no substantial
evidence that would support a finding of speeding." ____ So. 3d at ___.
B. There is No Need To Compare This Case to Ex parte City
of Montgomery, 272 So. 3d 155 (Ala. 2018), and the
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Comparison May Cause Confusion
After reaching this conclusion, the main opinion then goes a step
further to address "whether the existence of substantial evidence
indicating that Officer Coleman may have been speeding when the
accident occurred creates a material factual issue that must be resolved
by the trier of fact." ____ So. 3d at ____. The main opinion says: "[E]ven
if a jury were to find that Officer Coleman was speeding, we must
consider whether that finding would deprive Officer Coleman of Stateagent immunity." ____ So. 3d at ____.
The main opinion ultimately rules for Officer Coleman on this issue.
It states: "Under the particular facts here, we conclude that, even if a jury
were to find that Officer Coleman was speeding, the acting-beyondauthority exception would not apply." ____ So. 3d at ____. It further states
that, "[a]t most, Officer Coleman was driving slightly above the speed
limit late at night while on patrol; we decline to conclude that a finding
of speeding under the specific circumstances here would strip him of
State-agent immunity." ____ So. 3d at ____ (emphasis added).
The main opinion appears to bolster this conclusion about driving
"slightly above the speed limit" by comparing this case to our Court's
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prior decision in Ex parte City of Montgomery, supra, stating:
"In Montgomery, the conduct that was allegedly done
beyond the officer's authority directly resulted in the accident.
Although the officer admitted that she had been found at fault
for the collision and that she had violated her police training
in taking the action that caused the accident, she did not
exceed her authority under the second Cranman exception. In
this case, Angel argues that, if a jury were to find that Officer
Coleman was speeding, he exceeded his authority and, thus,
does not have State-agent immunity. However, Angel's own
expert testified that the accident most likely occurred because
Officer Coleman was distracted, not due to the speed he was
driving. That is, the conduct at issue here is much more
tangential to the accident than the conduct in Montgomery
was to the accident in that case. Given that the officer in
Montgomery was entitled to State-agent immunity, Officer
Coleman should be as well. Under the specific facts of this
case, even if Officer Coleman was slightly speeding while on
patrol late at night, that would not deprive him of State-agent
immunity.
____ So. 3d at ____ (emphasis added).
The purpose for which the main opinion is comparing this case to
our decision in Montgomery is unclear to me. If, on the one hand, the
main opinion is relying on Montgomery to say that "slightly" violating
the speed limit should not fit within existing exceptions to State-agent
immunity, I believe this conclusion is likely mistaken, is not supported
by Montgomery, and, in any event, is not necessary to grant Officer
Coleman and the city mandamus relief here.
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In Montgomery, our Court, in examining whether the "beyond the
authority" exception to State-agent immunity applied, noted that the
officer in that case had admitted in her deposition that (1) the city had
concluded that she was "at fault" for the collision underlying the
plaintiff's lawsuit, (2) that she had violated her police training by
entering the third lane of the intersection without knowing that the
traffic in that lane had stopped, and (3) that five seconds was not a
reasonable amount of time in which to clear the intersection.
Nevertheless, because the officer was engaged in a discretionary act --proceeding through an intersection while responding to an emergency
dispatch -- that is regularly performed by police officers who are carrying
out their law-enforcement duties, our Court held that she was still
entitled to State-agent immunity. 272 So. 3d at 167-68. Specifically, we
held that, "[e]ven assuming [the officer] violated her police training while
exercising her discretion, she did not act beyond her authority in
attempting to slowly proceed through an intersection, with the
emergency lights and siren activated on her patrol car, in response to an
emergency dispatch." Id. at 168.
It is my understanding that our holding as to State-agent immunity
37
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in Montgomery rested on the conclusion that the officer was exercising
her discretion when she slowly entered the third lane of the intersection
at issue with her emergency lights and siren activated on her patrol car
in response to an emergency dispatch.
Here, however, we must look to a more concrete set of rules -- the
Rules of the Road -- which, among other things, govern speeding. Such
rules leave little room for discretion on the part of a police officer, and,
therefore, a violation of such rules is more likely to trigger the application
of an exception to State-agent immunity.5 In my view, because of this
difference, drawing such parallels between Montgomery and this case
runs the risk of creating confusion.
On the other hand, if the main opinion is merely relying on
Montgomery to hold that there must be evidence of causation between
the violation of a law -- here, speeding -- and the accident to overcome
5To avoid any confusion, I note that law-enforcement officers have
express permission in some circumstances to violate speed limits. See,
e.g., § 32-5A-7, Ala. Code 1975. There is no argument in this case that
Officer Coleman had such authority to exceed the speed limit in this
situation.
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immunity, then I agree with that conclusion.6 A violation of the law (or
a department policy) that is not causally related to the accident cannot
be used as a basis for an exception to State-agent immunity. Without
reaching the ultimate issue, I observe that, based upon Kennett's
testimony, there is reason to believe that summary judgment would be
due on this basis also.
II. Conclusion
In sum, I concur with the main opinion's conclusions (1) that Officer
Coleman and the city met their burden of establishing that Officer
Coleman's conduct is covered by the fourth category of State-agent
immunity and (2) that Angel failed to meet his burden of showing that
the second exception to State-agent immunity applied in this case. In my
view, we need go no further to grant mandamus relief to Officer Coleman
and the city in this case.
However, the main opinion does go a step further in Part III.C. to
6For instance, I note that the main opinion includes a sentence that
could be read as discussing causation. It states: "That is, the conduct at
issue here is much more tangential to the accident than the conduct in
Montgomery was to the accident in that case." ____ So. 3d at ____
(emphasis added). While this is certainly correct, I am not sure that
Montgomery is a causation decision.
39
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address whether the existence of substantial evidence indicating that
Officer Coleman may have been speeding when the accident occurred
creates a material factual issue that must be resolved by the trier of fact
and, for reasons that are unclear to me, uses our Court's prior decision in
Montgomery as a basis for doing so. Because I do not believe that this
was necessary, I must concur in the result.
Wise and Parker, JJ., concur.
40
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MENDHEIM, Justice (dissenting).
Based on Officer Alonzo Cornelius Coleman IV's body-cam footage
immediately following the incident involving Ricardo Morales Cuin, and
on the other materials before us, a question of fact exists regarding
whether a driver satisfying the normal standard of care would have hit,
rather than avoided hitting, Cuin, who was apparently walking across
the road from an adjacent lane. Officer Coleman and the City of
Birmingham argue in their petition that that question of fact, and other
questions of fact, need not be answered at trial because Officer Coleman
"was unquestionably on patrol at the time of the accident and was within
his assigned beat when Mr. Cuin walked into his lane of travel while
intoxicated and clad in dark clothing from head to toe." Petition at 7.
According to Officer Coleman and the City, he was "on patrol," "not
speeding, … not physically using either of his mobile phones, and
ha[ving] his eyes on the road" while listening to a podcast and driving in
the rain at night.7 Id. Thus, they contend, immunity allowed him to
7Officer Coleman also stated in his deposition that he had a bag of
chips on his book bag or in the cup holder and that he was eating the
chips. Officer Coleman asserted that it was "raining heavily," and his
answers to interrogatories described it as a "torrential downpour,"
though his body-cam footage immediately following the incident does not
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potentially negligently cause the death of Cuin, without liability in his
individual capacity.8 I disagree. And the fact that being on patrol -- a
duty in the line and scope of Officer Coleman's employment that includes
several functions that may involve the exercise of discretion -- might
include Officer Coleman's " 'familiariz[ing] himself with the everyday
routine of people' in the East Precinct, in inspecting his beat 'for
conditions requiring police attention,' in '[g]iv[ing] attention to crime
hazards,' and in 'render[ing] all necessary police service in his assigned
indicate a visually obstructive rain and the windshield-wiper speed on
his vehicle was intermittent. Officer Coleman also asserted that the
scene was " 'pretty dark' … other than a flashing yellow traffic signal at
the intersection"; the body-cam footage reflects that there also were
streetlights nearby, though not illuminating the actual scene of the
incident. Officer Coleman asserted "that his eyes were on the road when
the [incident] occurred," and he described Cuin as walking into his lane
"from left to right," stating that he was "not visible until" the patrol car struck him. But how would Officer Coleman know Cuin was walking, not
running or stumbling, into his lane if Cuin was not visible until he was
struck while Officer Coleman's eyes were on the road? And Officer
Coleman testified in his deposition that he first saw Cuin "when [Officer
Coleman] got out of the vehicle" and that he knew he hit something but
did not see Cuin at all before he realized he had hit something, at which
point Cuin's body came onto the hood and rolled off to the side.
8As the main opinion notes, there is an issue of fact regarding
whether Officer Coleman was speeding, and that issue takes on
additional import given that it was raining, it was night, Officer Coleman
had trouble seeing a figure such as Cuin who might step into the
roadway, and he had chosen to listen to a podcast.
42
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area …., ' " id. at 20, is of no help to Officer Coleman because he does not
assert that he was engaged in any of those functions while on patrol duty.
Officer Coleman was simply listening to a podcast, eating chips, while
driving at night in his assigned area with his eyes on the road. By his
own admission, Officer Coleman was looking straight ahead while
driving and had been doing so for 5 to 10 seconds before the incident. He
did not present evidence indicating that he was, for example, "giving
attention to crime hazards" while driving, which may involve the exercise
of discretion to elevate a function associated with patrol duty over the
duty to drive in a manner applicable to all drivers. And while Officer
Coleman undoubtedly had discretion in driving as all drivers do, the
question is whether simply having discretion in driving authorizes a
violation of the standard of care applicable to drivers, regardless of
circumstance. The answer is no. See Ex parte Cranman, 792 So. 2d 392,
404 (Ala. 2000).
Based on the rationale of Ex parte Cranman, 792 So. 2d at 404-405,
as modified by Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006),
I do not agree that, because he was driving on patrol, Officer Coleman
was any more empowered to violate the standard of care applicable to all
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drivers than he might have been if he had been conducting an
investigation or returning to the precinct to clock out. See Walters v.
De'Andrea, 312 So. 3d 430, 435-37 (Ala. 2020). Officer Coleman has not
established that he was confronted with the necessity of making a
decision between fulfilling a function of his patrol duty -- such as
" '[g]iv[ing] attention to crime hazards' " by further observing suspicious
activity on a street corner he was about to pass -- or abiding by the
standard of care applicable to all drivers. If he was, he may be entitled
to immunity for engaging in conduct that might otherwise constitute
negligent conduct; an officer has the discretion to prioritize certain duties
over his or her driving duties in appropriate circumstances. But, as this
Court has determined, immunity is not a blanket authorization for
negligent driving when the need for making such a discretionary decision
is not involved.
In Walters, Officer Jessica De'Andrea attempted to qualify for
immunity using the third category described in Cranman, " 'discharging
duties imposed on a department or agency by statute, rule, or regulation,
insofar as the statute, rule, or regulation prescribes the manner for
performing the duties and the State agent performs the duties in that
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manner.' " 312 So. 3d at 434 (quoting Cranman, 792 So. 2d at 405).
De'Andrea argued that " '[o]ne of the daily duties of the patrol officers was
to report to their precinct at the end of their shift to turn in daily activity
logs.' " Id. (quoting De'Andrea's brief). The Court rejected that argument
because the policy at issue did not " 'prescribe[] the manner for
performing [that] dut[y]' other than that it had to be done at the end of a
shift. Cranman, 792 So. 2d at 405. The policy in question had nothing
to do with how De'Andrea drove her police vehicle on public roadways."
312 So. 3d at 435.
De'Andrea likewise made an argument using the fourth Cranman
category, " 'exercising judgment in the enforcement of the criminal laws
of the State, including, but not limited to, … [… serving as peace officers
under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code 1975].' " 312 So. 3d at 434 (quoting Cranman, 792 So.
2d at 405, as modified by Hollis, 950 So. 2d at 309). De'Andrea quoted to
the Court a lengthy list of "patrol duties" from "The Standard Operating
Procedure for the Montgomery Police Department Patrol Division." See
Walters, 312 So. 3d at 434-35. But the Court dispatched that argument
with the observation that De'Andrea had been unable to "point to a single
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patrol duty she was actually performing at the time the accident
occurred. In fact, De'Andrea admitted in her own testimony that she ...
was ... not performing any patrol duties." Id. at 435.
The main opinion attempts to distinguish Walters, essentially
indicating that the Walters Court implicitly was stating that if
De'Andrea had not been ending her shift, but had been "on patrol," and
had caused the accident, she would have been immune under the fourth
Cranman category. But the Walters opinion neither said nor implied any
such thing. In fact, the opinion repeatedly emphasized that the duty at
issue was "how De'Andrea drove her police vehicle on public roadways."
Id. at 435. Near the conclusion of the opinion, the Court said it this way:
"The duty at issue here -- 'the conduct made the basis of the
claim against [De'Andrea]' -- was nothing more or less than
the duty of due care that every driver on the roadway owes to
other motorists. Cranman, 792 So. 2d at 405. Under [Ex parte]
Venter[, 251 So. 3d 778 (Ala. 2017),] and other authorities,
such an action is not clothed with State-agent immunity."
Walters, 312 So. 3d at 437 (emphasis added).9
9I question whether a police department or a municipality may,
absent authorization by the legislature, institute a policy that a police
officer may deviate from the normally applicable standard of care for
drivers regardless of whether the circumstances under which the officer
must make a decision present a duty-related reason that might justify
such deviation. The main opinion would apparently conclude that if the
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This Court has already decided in Walters that a municipal police
officer must act in accord with the standard of care applicable to all
drivers absent a duty-related function that requires him or her to exercise
discretion to deviate from that standard of care in order to fulfill such
function. The legislature has even acknowledged such limits when
addressing another area involving the fulfillment of a law-enforcement
officer's duty, see Ala. Code 1975, § 32-5A-7 (providing conditional
privileges for "[t]he driver of an authorized emergency vehicle, when
responding to an emergency call or when in the pursuit of an actual or
suspected violator of the law or when responding to but not upon
returning from a fire alarm," § 32-5A-7(a)). And the rationale of the main
opinion presents an odd contrast to that section.
Section 32-5A-7 mandates the use of audio and visual signals that
would warn the public that the officer is responding to an emergency call
or in pursuit of a suspected violator and may violate certain otherwise
applicable laws related to the standard of care for driving. See § 32-5AMontgomery Police Department had said a patrol officer is "on patrol"
until he or she clocks out, it would have made a difference in Walters.
But that is inconsistent with the rationale in that case, which the main
opinion is essentially overruling under the guise of distinguishing.
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7(c). Under the rationale of the main opinion, however, the public must
be on alert at all times that any officer on patrol may negligently violate
such laws at any time, without providing any notice and without any
apparent need to do so. And, more importantly, even the high-stress
circumstances described in § 32-5A-7 have limits. When an officer
responding to an emergency call or in pursuit of a suspected violator of
the law is using required audible and visual signals, the officer
"(b) … may
"…
"(2) Proceed past a red or stop signal or stop
sign, but only after slowing down as may be
necessary for safe operation;
"(3) Exceed the maximum speed limits so
long as he does not endanger life or property[.]
"….
(d) The foregoing provisions shall not relieve the driver
of an authorized emergency vehicle from the duty to drive
with due regard for the safety of all persons, nor shall such
provisions protect the driver from the consequences of his
reckless disregard for the safety of others."
Thus, the legislature provided no carte blanche for negligent driving,
even under the circumstances described in § 32-5A-7. Yet, under the
rationale of the main opinion, by simply being on patrol Officer Coleman
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was relieved of the requirement to drive with due regard for the safety of
all persons, a privilege he would not have had had he been pursuing a
suspected violator when he hit Cuin. And, as the materials before us
reflect, even the patrol techniques of the Birmingham Police Department
require that an officer in a marked vehicle and on traffic patrol must
"operate [his or her] patrol vehicle[] in accordance with existing laws and
in such a manner as to demonstrate exemplary driving behavior.
Extreme emergency conditions will be the only exceptions to this
practice."
I respectfully dissent.
Stewart, C.J., concurs.
49