author: BRIDGES, P.J., IRVING, J.,

text:
    STATE FARM AUTO INSURANCE COMPANIES, as Subrogee of Sheila Barnes, and Sheila Barnes, Individually, Appellants, v. Dora DAVIS, Appellee.
    No. 2003-CA-01057-COA.
    Court of Appeals of Mississippi.
    Nov. 16, 2004.

      James “Paul” Clinton, Mobile, AL, attorney for appellants.
    Michael Earl Keyton, Port Gibson, attorney for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. On September 2, 1999, Sheila Barnes and Dora Davis were traveling in opposite directions on old Highway 18 in Claiborne County. As Barnes approached, Davis executed a left turn across Barnes’s lane of travel resulting in a collision. Barnes and State Farm Insurance Companies, as subrogee of Barnes, its insured, subsequently filed the present action against Davis seeking indemnification for damages paid as a result of Davis’s alleged negligence.

¶ 2. The jury in the Circuit Court of Claiborne County returned a verdict in favor of Davis. State Farm and Barnes then filed a motion for judgment notwithstanding the verdict, but the motion was denied. Aggrieved by the decision, they appeal claiming said denial was in error.

¶ 3. Upon thorough review of the record, we find the jury’s verdict to be contrary to the overwhelming weight of the evidence. Accordingly, we reverse and render.

LAW AND ANALYSIS

¶ 4. Considering the material facts surrounding the collision and all rational inferences possibly drawn therefrom, the verdict rendered by the Claiborne County jury, absolving Davis of any negligence whatsoever, absolutely defies logic. The evidence presented at trial established that Davis was negligent as a matter of law for failing to maintain a proper lookout and to yield the right-of-way. I begin with a brief recital of the applicable law.

¶ 5. The long-standing law in Mississippi declares that the province of the court extends to questions of law while that of the jury extends to questions of fact. Cantrell v. Lusk, 113 Miss. 137, 144, 73 So. 885, 886 (1916). Actions in negligence are generally regarded as founded in fact, and for that reason the legislature mandated that “[a]ll questions of negligence and contributory negligence shall be for the jury to determine.” Miss.Code Ann. § 11-7-17 (Rev.2004); Philco Distrib., Inc. v. Herron, 195 So.2d 473, 477 (Miss.1967). However, Rule 50 of the Mississippi Rules of Civil Procedure is a device by which the court is authorized “to enforce the rules of law by taking away from the jury cases in which the facts are sufficiently clear that the law requires a particular result.” M.R.C.P. 50, cmt. The Mississippi Supreme Court has explained that the jury is to determine the issue of negligence, “unless the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and no inference except that of negligence or of no negligence can be justly drawn therefrom, in which event the question is for the determination of the trial judge.” City of Greenville v. Laury, 172 Miss. 118, 122, 159 So. 121, 122 (1935). The record reveals that there was no issue of fact and conclusively establishes that Davis was negligent; therefore, the trial judge should have decided the case.

¶ 6. The only fact that could be even argued as in dispute arises from a variance in testimony between that of Davis and Barnes regarding the actual point of impact in relation to a curve in the road. The precise location, however, is inconsequential to the outcome of the case, and the only definitive, relevant fact gained from their testimony in this regard is that Barnes came around a curve shortly before impact.

¶ 7. The evidence before the jury clearly proved negligence by Davis. To maintain an action in negligence, the plaintiff has the burden of proving that (1) he was owed a duty by the defendant; (2) defendant’s conduct was a breach of that duty; (3) defendant’s breach was the proximate cause of injury to plaintiff; and (4) plaintiff suffered damage as a result of injury. Hadad v. Lockeby, 176 Miss. 660, 669, 169 So. 691, 693 (1936). The Mississippi Supreme Court explains that negligence is “the result of the failure to perform a duty, therefore actionable negligence cannot exist in the absence of a legal duty to an injured plaintiff,” and whether such duty exists is a question of law to be decided by the court. Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473, 475 (Miss.1967) (citations omitted). Davis’s duty was statutorily imposed. The Mississippi legislature codified the “Rules of the Road” for the purpose of protecting those who use the roads, thereby establishing that every motorist owes a duty to every other traveler to exercise reasonable care to prevent injury and to operate his motor vehicle in accordance with the statutes. Miss.Code Ann. §§ 63-3-1 to 63-3-1213 (Rev.2004); Aycock v. Burnett, 157 Miss. 510, 128 So. 100 (1930). Failure to act in accordance with the statutes does not in and of itself establish negligence; however, violation of the statutes will be generally found to constitute “negligence per se” if (1) the plaintiff was in the class of persons the statute was designed to protect, and (2) the injury the plaintiff sustained was the kind of injury the statute was designed to prevent. Byrd v. McGill, 478 So.2d 302, 304-05 (Miss.1985).

¶8. The specific statutory duties with which Davis was required to comply, as applicable to the facts at bar, include maintaining a proper lookout, as codified in Miss.Code Ann. § 63-3-707 (Rev.2004), and yielding the right-of-way, as codified in Miss.Code Ann. § 63-3-803 (Rev.2004). These duties are implicated when a motorist, inter alia, crosses a lane of opposite flowing traffic and were accordingly designed to protect the motorists whose lanes are being crossed. Davis was crossing Barnes’s lane of traffic, so Barnes certainly falls in that class of protected persons. The duties were designed to facilitate safe passage across opposing lanes, thereby avoiding collisions. Barnes was injured when she collided with Davis, so Barnes certainly suffered the particular injury the statute was designed to prevent. As a result, Davis was per se negligent. Accordingly, a verdict should have been returned in favor of Barnes because the violation of the statute by Davis was the unequivocal proximate cause of Barnes’s injury.

¶ 9. However, even if Barnes’s collision with Davis was not to be considered the product of per se negligence by Davis, the facts presented at trial unconditionally demonstrate that the collision was the result of Davis’s negligence. As previously noted, Davis, in executing a left-hand turn, owed Barnes the statutory duties of maintaining a proper lookout and yielding the right-of-way. An abbreviated analysis of Mississippi’s case law, regarding conduct required to satisfy these duties, makes Davis’s failure fully evident and is as follows: Shideler v. Taylor, 292 So.2d 155 (Miss.1974) (It is duty of an automobile driver to see that which is in plain view, open and apparent, to take notice of obvious danger, and to be on alert so as to avoid collision with objects, vehicles, and others using highway.); Campbell v. Schmidt, 195 So.2d 87 (Miss.1967) (A motorist is charged with seeing what he should have seen.); Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962) (A motorist has a duty to keep his automobile under control and to keep a lookout in the direction in which he is proceeding, and he must at all times be vigilant and anticipate and expect the presence of others and cannot assume that the way is clear.); Tippit v. Hunter, 205 So.2d 267 (Miss.1967) (The driver of an automobile is chargeable with the knowledge of all conditions which would be obtainable by the exercise of his faculties, and it is his duty to see that which is in plain view or open and apparent and to take notice of obvious dangers.); Sohio Petro. Co. v. Fowler, 231 Miss. 72, 94 So.2d 350 (Miss.1957) (A motorist is under a duty to keep proper lookout and be on alert for other vehicles using highway and a statutory duty not to turn her vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety, and then only after giving appropriate signal by hand, arm, or signal device in event any other vehicle might be affected by such movement.); Flynt v. Fondren, 122 Miss. 248, 84 So. 188 (1920) (A driver of a motor vehicle must keep a lookout for other vehicles and persons and keep his machine under control and cannot assume that the road is clear but must under all circumstances and at all times be vigilant and anticipate and expect the presence of others, and if he fails to do so, he is negligent.).

¶ 10. Davis maintains that she kept a proper lookout before turning across Barnes’s lane. This contention, however, is supported by nothing other than her self-serving testimony, which is contradicted by the facts of the case. Davis’s testified on direct as follows:

Q. And [Ms. Davis] were you paying attention?
A. Yes.
Q. How would you describe yourself as a driver?
A. Good. Careful.
Q. Is that all of the time or some of the time?
A. That’s all of the time because my life is in danger just like everybody else coming down the road.
Q. Now, prior to making that left, did you see Sheila Barnes?
A. No, I didn’t.
Q. Were you looking for a vehicle coming from that direction?
A. Yes. I — it’s a curve.
Q. , Would you — were you paying extra attention to that?
A. Yes.
Q. And what happened after you began making that left?
A. All of a sudden, something hit my car, a car hit me. Well, she hit my car.

¶ 11. In conjunction with the duties of maintaining a proper lookout and yielding the right-of-way, Davis was additionally “under a duty to use care commensurate with all the circumstances and the danger reasonably to be anticipated.” Freeze v. Taylor, 257 So.2d 509, 512 (Miss.1972). In her testimony, Davis alluded to the fact that she was extra careful in executing this particular left-hand turn because visibility of approaching vehicles is limited by a curve in the road immediately ahead of where she was turning. Therefore, the degree of caution Davis was required to exercise in making that particular left turn grew in direct proportion to the potential danger that was involved. As Davis testified, she simply looked and then, having seen nothing, turned. From these facts, no reasonable person could find that Davis met the minimal standard of care, i.e., “to keep a reasonable lookout to the front and side of her moving vehicle to keep it under reasonable and easy control, and to anticipate and expect the presence of other vehicles which were also using the highway at the same time,” Fielder v. Magnolia Beverage Co., 757 So.2d 925, 934(¶ 32) (Miss.1999), much less the heightened standard produced by the potential of danger.

¶ 12. Counsel for Davis questioned Barnes in an apparent effort to elicit testimony from which the jury could possibly determine whether Barnes saw Davis’s car in time to avoid the collision or infer that Barnes failed to avoid the collision because she was speeding or not paying proper attention. Barnes testified on cross-examination as follows:

Q. Now, then you’re getting ready to take that left — when Mrs. Davis got ready to take that left, at some point in time, she couldn’t see you as you were coming around the curve; isn’t that correct?
A. I wasn’t in the curve. I was on the straight road when the accident happened. I had passed the curve. I was visible. I saw Ms. Davis come up the left side of the road, but I had the right-of-way, so I continued to travel to where I was going. It was Ms. Davis to stop and wait until I passed by. I wasn’t in the curve.
Q. Let’s talk about that. Okay.
A. I had the right of way.
Q. At what point in time did you see Ms. Davis?
A. I saw her as I approached traveling down the highway. I saw the other vehicle come up, you know, on the left side of the road.
Q. You were looking around the curve? Is that your testimony?
A. I wasn’t in the curve.
Q. You had left the curve; is that your point?
A. Yes.

The corollary to the contention that Barnes saw Davis’s car in time to avoid colliding with her, however, fatally undermines the inference it attempts to advance, i.e., if Barnes saw Davis in time to avoid colliding with her, Davis should have seen Barnes in time to avoid being hit. Additionally, Barnes was not required to approach Davis in anticipation of having to avoid hitting her because she could reasonably assume that Davis would not suddenly turn in her lane and across her path. Lewis v. Brogdon, 208 So.2d 761, 765 (Miss.1968).

¶ 13. Furthermore, Barnes testified on direct and cross-examination to the fact that she was not speeding, and no evidence to the contrary was offered. Moreover, none of the evidence at trial lends itself to infer that Barnes was not paying attention. No reasonable individual could resolve the facts of this case finding that Barnes was eontributorily negligent, and even if Barnes was found to be eontributorily negligent, that fact alone does not preclude her from recovering damages. See Philco Distrib., 195 So.2d at 477. Most significant, however, is the rule that “the testimony of a witness which is uncontradicted, and who is not impeached in some manner known to the law, where he is not contradicted by the circumstances, must be accepted as true.” Wilson v. Blanton, 130 Miss. 390, 398, 94 So. 214, 216 (1922).

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, P.J., MYERS, CHANDLER, GRIFFIS AND ISHEE, JJ„ CONCUR. IRVING, J., DISSENT WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., AND BARNES, J.

IRVING, J.,

Dissenting.

¶ 15. A Claiborne County jury, on disputed evidence, returned a verdict for Ap-pellee Dora Davis in an action brought by Sheila Barnes, and by State Farm Auto Insurance Companies, Barnes’s subrogee. The majority, substituting its judgment for the judgment of the jury, nullifies the jury’s verdict, reverses, and renders judgment in favor of Barnes and State Farm. Considering the standard of review which we, as a reviewing court, are obligated to honor, I do not believe that the majority is warranted in taking away the verdict of the jury which undeniably was returned on disputed facts. Therefore, I respectfully dissent.

¶ 16. To demonstrate the disputed issues of fact, I quote from the testimony of the drivers of the two vehicles involved, Dora Davis and Sheila Barnes, who were traveling in opposite directions on old Highway 18 in Claiborne County when Davis executed a left turn across Barnes’s lane of travel. As will be seen, this testimony demonstrates more eloquently than anything I or the majority can say to justify our respective positions. I quote first from the direct examination testimony of Dora Davis, the appellee:

Q. And [Ms. Davis] were you paying attention?
A. Yes.
Q. How would you describe yourself as a driver?
A. Good. Careful.
Q. Is that all of the time or some of the time?
A. That’s all of the time because my life is in danger just like everybody else coming down the road.
Q. Now, prior to making that left, did you see Sheila Barnes?
A. No, I didn’t
Q. Were you looking for a vehicle coming from that direction?
A. Yes. I — it’s a curve.
Q. Would you — were you paying extra attention to that?
A. Yes.
Q. And what happened after you began making that left?
A. All of a sudden, something hit my car, a car hit me. Well, she hit my car.

¶ 17. I next quote from the cross-examination testimony of Sheila Barnes, State Farm’s subrogee, and one of the appellants.

Q. Now, then you’re getting ready to take that left — when Mrs. Davis got ready to take that left, at some point in time, she couldn’t see you as you were coming around the curve; isn’t that correct?
A. I wasn’t in the curve. I was on the straight road when the accident happened. I had passed the curve. I was visible. I saw Ms. Davis come up the left side of the road, but I had the right-of-way, so I continued to travel to where I was going. It was Ms. Davis to stop and wait until I passed by. I wasn’t in the curve.
Q. Let’s talk about that. Okay.
A. I had the right of way.
Q. At what point in time did you see Ms. Davis?
A. I saw her as I approached traveling down the highway. I saw the other vehicle come up, you know, on the left side of the road.
Q. You were looking around the curve? Is that your testimony?
A. I wasn’t in the curve.
Q. You had left the curve; is that your point?
A. Yes.

¶ 18. Based on the quoted passages, it is clear beyond reasonable dispute that Davis’s and Barnes’s testimony raise an issue of fact as to whether Barnes negligently plowed into Davis simply because, as Barnes put it, “[she] had the right-of-way, so [she] continued to travel to where [she] was going” or whether Davis negligently executed a left turn because, despite her testimony — that she was paying extra attention to the direction from which Barnes came and did not see Barnes— Barnes was in a position to be seen and was too close to the intersection for Davis to be able to safely execute the left turn.

¶ 19. The majority finds that State Farm was entitled to a directed verdict or judgment notwithstanding the verdict because Davis’s negligence was proven as a matter of law. For its finding, the majority relies primarily on the provisions of Mississippi Code Annotated section 63-3-803 (Rev.2004) which states in relevant part:

The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard. However, said driver, having so yielded and having given a signal when and as required ... may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn.

Miss.Code Ann. § 63-3-803 (Rev.2004) (emphasis added).

¶ 20. Clearly, the critical factual issue before the jury was whether Barnes’s vehicle was either within the intersection before Davis began executing her left turn or was so close thereto as to constitute an immediate hazard if Davis then executed the left turn. Barnes does not contend that she was within the intersection when Davis executed the left turn. Therefore, the jury’s focus, based on the evidence presented, had to be on whether Barnes’s vehicle was so close as to constitute a hazard for anyone attempting to make a left turn across her lane of travel. Deciding this issue was the classical role of a jury-

¶ 21. The majority says that Davis’s counsel’s attempt on cross-examination to prove that Barnes was at fault by demonstrating that she saw Davis in time to avoid colliding with her “fatally undermines the inference [such cross-examination] attempts to advance, i.e., if Barnes saw Davis in time to avoid colliding with her, Davis should have seen Barnes in time to avoid being hit.” Accepting as true the corollary suggested by the majority, does not support the result reached by the majority. All that would mean is that there existed a question of fact for the jury to resolve, i.e., did Davis see, or should have seen, that Barnes was too close for Davis to safely execute the left turn or was Barnes far enough away for Davis to safely execute the left turn but negligently ran into Davis because Barnes felt she had the right-of-way, notwithstanding Davis’s position. Barnes was not entitled to a directed verdict simply because an accident occurred and because she said she had the right-of-way at the time of the collision. And because of the disputed nature of the evidence, Barnes was not entitled to a JNOV after the jury ruled against her.

¶ 22. While I do not know what caused the jury to vote as it did, there is no doubt that there was sufficient evidence presented that would entitle the jury to decide as it did. As already observed, there was testimony that Davis kept a proper lookout, was paying attention, looked down the highway before executing the left turn, and had turned on her left turn signal before executing the turn. There was also testimony that there was a curve in the road just ahead of the point where the accident occurred. On the other hand, there was testimony that the road was straight where the accident occurred.

¶ 23. The fact that Davis turned across Barnes’s lane of travel does not prove conclusively that Davis was negligent. This seems to be the majority’s view. It was undisputed that she had turned on her left turn signal. If the jury accepted Davis’s testimony, as it was permitted to do, it could find that, at the time she began executing her left turn, no other vehicle was approaching from the opposite direction within the intersection or so close thereto as to constitute an immediate hazard. Embracing Barnes’s testimony the jury could have determined that she saw Davis’s vehicle in time to avoid the accident. As observed, Barnes testified that she saw Davis’s car approaching on the left side of the road. She did not state how close Davis’s car was to her car when she first saw Davis’s vehicle. If she had time to avoid striking Davis, she had no right to plow into her simply because she initially had the right-of-way. The jury might have inferred that — because Barnes did not state the distance between the two cars when she first saw Davis’s car — she saw Davis’s car in time to avoid the accident or that the accident was not avoided because Barnes was speeding or not paying attention until it was too late.

¶ 24. Again, while I cannot know the basis for the jury’s verdict, the law is clear that whatever conflicts exist in the evidence, they are to be resolved by the jury. Venton v. Beckham, 845 So.2d 676, 687(¶ 36) (Miss.2003). The verdict of the jury should be left alone when reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Stubblefield v. Jesco, Inc. 464 So.2d 47, 54 (Miss.1984). In my judgment, that is the situation presented by the facts of this ease. Accordingly, I respectfully dissent from the decision of the majority to elevate itself above the jury and invade the province of this significant player in our esteemed judicial system. I would affirm.

KING, C.J., AND BARNES, J., JOIN THIS SEPARATE OPINION.


source: Caselaw Access Project

author: WOODALL, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    Gladys Bowens HOWARD, as administratrix of the estate of Marilyn Faye Bowens, deceased v. CITY OF ATMORE et al.
    1021312.
    Supreme Court of Alabama.
    Dec. 12, 2003.
    As Modified on Denial of Rehearing Feb. 20, 2004.

      Charles R. Godwin and Timothy J. God-win, Atmore, for appellant.
    Lawrence M. Wettermark and Thomas O. Gaillard III of Galloway, Smith, Wetter-mark & Everest, L.L.P., for appellees.
   WOODALL, Justice.

Gladys Bowens Howard, as administra-trix of the estate of her sister, Marilyn Faye Bowens, deceased, appeals from a summary judgment entered in favor of the City of Atmore; Joseph Daniel McKinley, the police chief of the City of Atmore; and police officer Frank Bryars in Howard’s wrongful-death action arising out of the suicide of Marilyn Faye Bowens, while she was in the custody of the police department of the City of Atmore (“the City”). We affirm in part, reverse in part, and remand.

The following facts are undisputed: On May 24, 1999, following convictions for third-degree theft of property, third-degree assault, resisting arrest, and destroying city property, Bowens began serving a 120-day sentence in the City jail. The jail was equipped with a video camera that allowed continuous monitoring of Bowens’s cell from a remote location.

At 3:00 p.m. the next day, May 25, Betty Cox completed her eight-hour shift as the jailer/dispatcher. Before leaving for the day, Cox conducted a cell check of the inmates. At that time, Officer Frank Bryars began his shift as the jailer/dispatcher, replacing Cox. At 4:08 p.m., Sgt. Carey Flavors went to Bowens’s cell to speak with her. He found Bowens hanging by the neck from bars in the ceiling, to which she had attached herself with her shoe laces. Flavors “yelled for help,” and he and Officer Bryars removed Bowens from the makeshift noose. Bowens died without regaining consciousness. Subsequently, Howard filed this wrongful-death action against the City and against Chief McKinley and Officer Bryars, in their individual and official capacities.

The defendants moved for a summary judgment, contending that they are entitled either to “peace-officer” immunity, pursuant to Ala.Code 1975, § 6-5-338, or to “State-agent” immunity under the analysis set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000), and adopted in Ex parte Butts, 775 So.2d 173 (Ala.2000). The trial court entered a summary judgment for all the defendants, relying expressly on the ground of immunity. Howard appealed.

I. Immunity

Chief McKinley and Officer Bryars contend that they are entitled to peace-officer immunity, as set forth in § 6-5-338(a). That section provides:

“Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as such peace officer by the state or a county or municipality thereof, or by an agency or institution, corporate or otherwise, created pursuant to the Constitution or laws of this state and authorized by the Constitution or laws to appoint or employ police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, 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 laiv enforcement duties.”

(Emphasis added.)

By enacting this statute, the Legislature intended to afford municipal law-enforcement officials the immunity enjoyed by their state counterparts. Sheth v. Webster, 145 F.3d 1231, 1237 (11th Cir.1998). Indeed, “[t]his statute, by its terms, extends state-agent immunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties.” Moore v. Crocker, 852 So.2d 89, 90 (Ala.2002) (emphasis added).

In Ex parte Cranman, supra, this Court “restated the law of state-agent immunity in Alabama.” Moore, 852 So.2d at 90. Since Cranman, we analyze immunity issues in terms of “State-agent” immunity, rather than “under the dichotomy of ministerial versus discretionary functions.” Ex parte Hudson, 866 So.2d 1115, 1117 (Ala.2003). See also Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003); Ex parte Turner, 840 So.2d 132, 134 n. 1 (Ala.2002). Thus, we will address the applicability of peace-officer immunity under the principles set forth in Cranman. See Moore, supra; Ex parte Duvall, 782 So.2d 244 (Ala.2000).

A Officer Bryars

Howard’s claims against Officer Bryars are based on allegations that Officer Bryars “negligently or wantonly failed to implement reasonable precautionary measures, including, but not limited to, the Atmore Police Department’s Standard Operating Procedures, to prevent [Bowens] from committing suicide.” Howard’s brief in opposition to defendants’ motion for summary judgment.

As a threshold matter, Howard contends that Officer Bryars is not entitled to peace-officer immunity, because, she argues, § 6-5-338(a) does not apply to jailers. More specifically, she states: “Because Bryars was not performing any of the duties enumerated in § 6-5-338, but rather was acting as a dispatcher/jailer, he should not be cloaked with § 6-5-338 immunity. His performance of the duties of jailer/dispatcher was outside the ‘line and scope of his ... law enforcement duties.’ ” Howard’s appellate brief, at 66 (emphasis added). We disagree.

Simply stated, the statute shields every defendant who (1) is a “peace officer,” (2) is performing “law enforcement duties,” and (3) is exercising judgment or discretion. It is undisputed that Officer Bryars was a sworn law-enforcement officer at the time of Bowens’s suicide, and that he was temporarily serving as a jailer/dispatcher while he was recuperating from surgery. The first element is, therefore, satisfied. The second inquiry is whether the guarding of a city jail by a regular police officer is one of the “law enforcement duties” contemplated by the statute. We answer that question in the affirmative.

“All cities and towns of this state ... have the power to establish, erect, maintain and regulate jails, ... and to purchase and provide for any and all things which may be deemed advisable or necessary thereto....” Ala.Code 1975, § 11-47-7. Thus, it requires no stretch of logic to conclude that the operation of jails by municipal police departments is a “law enforcement” function. Indeed, this Court has expressly determined that a “jailer ... is a peace officer,” and has adopted the view that the “custodian of a convict” is a “law enforcement officer ... engaged in the active discharge of his lawful duty,” within the meaning of Act No. 746, § 3, Ala. Acts 1967, formerly codified at Ala. Code 1975, § 13-1-42 (criminalizing assault on' a “peace officer or other law enforcement officer ... engaged in the active discharge of his lawful duty”) (repealed by Act No. 607, § 9901, Ala. Acts 1977). House v. State, 380 So.2d 940, 941 (Ala.1979). In doing so, this Court explained:

“ ‘ “Whether those performing [the duties of a correction officer] bear the title of jail guard, warden or correction officer, overseeing the custody and punishment of law violators is as much a part of law enforcement as undertaking the detection and apprehension of such violators. Moreover, they have the further duty of detecting and preventing violations of law by prisoners, e.g., assaults on other prisoners, escapes, etc., and in that sense are literally law enforcement officers.... ”
“ ‘... [Pjrison guards are “law enforcement officers,” particularly since it is their duty to force the convicts to obey and endure the sentence of the law.’ ”

380 So.2d at 942 (quoting and adopting the reasoning of Presiding Judge Cates in his special concurrence in Lowe v. State, 54 Ala.App. 280, 285, 307 So.2d 86, 90-91 (1974), which was adopted by the court on rehearing) (emphasis added). We hold, therefore, that the guarding of a city jail by a regular municipal police officer is a “law enforcement dut[y]” within the meaning of § 6-5-338(a).

Next, we consider Officer Bryars’s conduct in light of the Cranman factors. In Cranman, we said:

“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
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) 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; or
“(4) 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
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(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
“(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.”

792 So.2d at 405 (emphasis in original).

Moreover, “[w]e have established a ‘burden-shifting’ process when a party raises the defense of [S]tate-agent immunity.” Giambrone, 874 So.2d at 1052. Under this process, Officer Bryars “bear[s] the burden of demonstrating that [Howard’s] claims arise from a function that would entitle [him] to immunity.” 874 So.2d at 1052. “If [he makes] such a showing, the burden then shifts to [Howard], who, in order to deny [Officer Bryars] immunity from suit, must establish that [Officer Bryars] acted willfully, maliciously, fraudulently, in bad faith,” 874 So.2d at 1052, or that he “was not exercising his ... judgment in the manner set forth in the examples in Cranman.” Ex parte Hudson, 866 So.2d at 1118.

Howard first contends that Cranman affords Officer Bryars no immunity, because, she insists, guarding inmates in a municipal jail is not expressly included in the categories of conduct in that opinion. Specifically, she states:

“Cranman is a departure from the days in which a court was required to engage in the discretionary versus ministerial function analysis. The old ‘discretionary functions’ are now embodied in a comprehensive test and where the conduct at issue does not fall within a category of conduct recognized by the restated rule as immune, the official is therefore not entitled to state-agent immunity.
“According to the Cranman test, the conduct that is challenged in this case, i.e., training, implementing/enforcing procedures, and identification and handling of potentially suicidal persons in confinement, [does] not fit within any category of conduct recognized by the restated rule as immune.”

Howard’s appellate brief, at 39-41 (emphasis added).

Howard’s reading of Cranman is too rigid. Cranman is a restatement of the law of immunity, not a statute. Categories (3) and (4) of that restatement are clearly broad enough to contemplate the confinement of prisoners, which is the conduct in controversy here.

On its face, Cranman disclaims the rigidity, or exclusivity, attributed to it by Howard. In other words, Cranman states categories, but does not purport to set forth an exhaustive list of activities falling within each category. Thus, the Cranman categories include the guarding of a city jail by a regular municipal police officer.

Howard next contends that Officer Bryars is not entitled to immunity, because, she insists, he failed to follow mandatory rules and procedures prescribed by the City police department for observing inmates. She refers specifically to an “Administrative Order” (“the order”), which constituted a portion of the “Standard Operating Procedures Manual” (“the manual”). The defendants submitted the order and other pertinent portions of the manual in support of their motion for a summary judgment. Regarding the order and the manual, Chief McKinley’s affidavit states, in pertinent part:

“4. The [City] has written policies and procedures directed toward preventing injury to persons confined in the Atmore City Jail, including persons who might attempt suicide. There is also video monitoring equipment in the jail used to assist in monitoring inmates. In addition, there are some unwritten policies used in the Atmore City Jail to minimize the risk of inmate suicide. All of these policies, procedures and equipment were in place at the Atmore City Jail as of May 25,1999.
“5. The day to day operation and control of the jail is generally performed by an employee serving both as a dispatcher and jailer. Attached to this affidavit and marked as Exhibit A is a copy of the job description of dispatcher from the [manual] of the City of Atmore.
“6. In addition, the shift supervisor, generally a police sergeant, is also charged with consulting with the dispatcher/jailer in instances where an inmate demonstrates a potential for suicide or to harm themselves. Attached to this affidavit and marked as Exhibit B is a true and correct copy of the job description of police sergeant from the [manual] of the City of Atmore, along with the administrative order for the communications unit of the [City], a true and correct copy of which is attached as Exhibit C.
“10. Typically, dispatchers are required to make a cell check twice an hour and more frequently as they see a need. The cell check consists of the dispatcher physically walking into the jail area and viewing the person in their cell.”

(Emphasis added.)

The order states in part:

“ADMINISTRATIVE ORDER
“THE FOLLOWING FIELD COMMUNICATIONS PROCEDURE SHALL BE ADHERED TO BY ALL PERSONNEL:
“ADMISSIONS PROCEDURE
“Admission procedures for the municipal jail are as follows:
“7. The dispatcher on duty shall make periodic jail checks on inmates at least twice an hour and more often if needed or circumstances call for additional checks. The monitor camera ivill constantly be operating and observed by dispatchers. Dispatchers, DO NOT release inmates for any reason except for an emergency evacuation (follow procedure for emergency evacuation plan).
“RESPONSIBILITY OF DISPATCHER/JAILERS
“Dispatcher/Jailers shall be responsible
for the following:
“1. Adhering to all guidelines set forth in these procedures.
“2. Enforcing and implementing all guidelines.
“10. Making checks of intoxicated persons, drug addicts, physical and mental health risks and suicidal risks every thirty minutes. These rounds shall be documented on the radio log.
“11. Obsewe television monitors continuously, listen to the intercom, and check smoke detectors for safety and security purposes.”

(Some boldface type and some emphasis omitted; emphasis added.)

Howard relies on paragraph 10, which appears in the portion of the order entitled “RESPONSIBILITY OF DISPATCHER/JAILERS.” She argues that paragraph 10 required Officer Bryars to check on Bowens every 30 minutes, because, she insists, there was evidence from which Officer Bryars should have identified Bowens as a suicide risk, and because, she contends, there was evidence that those checks were not made. In response to this argument, the defendants state:

“There are no specific written instructions or statutes setting out how [Officer] Bryars should make a determination about whether an inmate is potentially suicidal.... Therefore, the initial determination of whether an inmate should be placed into the category of a suicide watch is not controlled by any written instructions and the particular officer must use his discretion in the context of that situation to make an appropriate decision.”

Appellees’ brief, at 44-45 (emphasis added).

We agree with the defendants that Howard’s reliance on paragraph 10 is misplaced. Whether an inmate is a “drug addict,” a “physical or mental health risk,” or a “suicide risk” must be determined on a case-by-case basis, and necessarily requires the exercise of judgment in each case. Thus, Officer Bryars’s alleged noncompliance with paragraph 10 does not strip him of his cloak of State-agent immunity.

Howard, however, also relies on paragraph 7, which appears on the same page as paragraph 10, under the heading “ADMISSIONS PROCEDURE.” Her reliance on paragraph 7 stands on better ground. Indeed, Bryars fails to address Howard’s argument as it relates to paragraph 7.

Paragraph 7 simply states that the jailer/dispatcher “shall make periodic jail checks on inmates at least twice an hour,” and requires constant observation of the “monitor camera.” Unlike paragraph 10, paragraph 7 does not turn on the subjective observations or assessments of individual inmates, or contemplate the exercise of judgment by individual jailers. Thus, it applies to all inmates, rather than to certain at-risk persons, and does not apply on a case-by-case basis.

In eases decided after Cranman, this Court has held what was clearly implied in Cranman, namely, that a “State agent acts beyond authority and is therefore not immune when he or she ‘fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’ ” Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)) (emphasis added). The complaint in Giambrone sought compensation for injuries suffered by 15-year-old Jake Giambrone, a member of the wrestling team, in an impromptu wrestling match with Michael Douglas, the head wrestling coach for Auburn High School. 874 So.2d at 1049. Douglas outweighed Giambrone, who was a freshman, by approximately 70 pounds. Id. The trial court entered a summary judgment in favor of Douglas on the ground of State-agent immunity.

In this Court, the appellant argued that the summary judgment was improper, because there was evidence indicating that “[Douglas] violated the competition guidelines as promulgated by the National Federation of Wrestling (‘NFW’); and ... engaged in ‘inequitable competition’ with Jake in violation of the code of conduct contained in the Alabama High School Athletic Directors and Coaches Association Directories (‘the Athletic Directories’).” 874 So.2d at 1051 (emphasis added). This Court agreed with that argument and reversed the summary judgment. 874 So.2d at 1057.

In doing so, the Court noted that, as a general principle, “Douglas was permitted to exercise broad judgment in the education of his students.” 874 So.2d at 1053. It explained, however, that Douglas’s supervisor, the athletic director, had “instructed the coaches ... to follow the guidelines in the Athletic Directories,” and that he had “provided Douglas with a book containing rules promulgated by the NFW in order to make sure that Douglas knew the rules for conducting wrestling matches.” 874 So.2d at 1054. The Court stated:

“Although [the athletic director] was not directed by the [Auburn City Board of Education] to impose on the coaches at Auburn High School the guidelines and rules of the ... NFW and the Athletic Directories, it was within the exercise of his judgment to ‘insist’ that the coaches comply with those guidelines and rules.
“Therefore, Douglas’s ‘broad authority’ to exercise judgment in the safe conduct of his wrestling team practices was limited by the guidelines and rules furnished and imposed by [the athletic director].”

874 So.2d at 1054. The Court concluded:

“The guidelines and rules removed Douglas’s judgment in determining whether he should participate in a ‘full speed’ challenge match with a student who was less experienced, much younger, and smaller than Douglas. Moreover, the guidelines and rules restricted the type of moves that are permissible in the sport of wrestling. Because a trier of fact could determine that Douglas performed an illegal move during an ‘inequitable’ challenge match, thereby failing to discharge his duties pursuant to ‘detailed rules or regulations,’ we cannot determine at this stage in the proceedings that Douglas is entitled to State-agent immunity. Douglas did not met his burden of establishing that his actions and decisions involved functions that entitled him to immunity.”

874 So.2d at 1055 (emphasis added).

Like the “guidelines and rules” in Giam-brone, paragraph 7 of the order left no room for the exercise of judgment as to the manner in which or the frequency with which Bowens should be monitored. Moreover, Howard presented substantial evidence indicating that Officer Bryars failed to discharge the duties imposed by paragraph 7.

Bowens’s suicide was investigated by Agent Douglas Darby of the Alabama Bureau of Investigation. According to Darby’s deposition, Officer Bryars told Agent Darby that Officer Bryars made a “jail check” on all the inmates when he arrived at 3:00 p.m. to begin his shift. Also, Officer Bryars told Darby that he saw Bowens on the “monitor camera” once between 3:00 p.m. and 4:08 p.m., but that he never saw her at any other time, either by jail check, or by monitor, until she was discovered at 4:08 p.m., hanging from the bars. Thus, by his admission, Officer Bryars failed to comply with paragraph 7, which requires the jailer to make “jail checks” of all inmates at least twice per hour, and “constantly” to observe the “monitor camera.” Indeed, Officer Bryars testified that when Sgt. Flavors “yelled for help” at 4:08 p.m., Officer Bryars looked at the camera monitor of Bowens’s cell and saw her hanging from the ceiling. There is evidence, therefore, from which a jury could find that, had he been observing the monitor in compliance with paragraph 7, he could have seen Bowens tying her shoelaces to the overhead bars and making other preparations to hang herself.

To be sure, Officer Bryars filed an affidavit on June 30, 2000, in which he testified that he “observed Marilyn Bowens on the video monitor approximately five to ten minutes before she was discovered hanging,” and noticed nothing “unusual.” However, to the extent that the affidavit contradicts his admissions to Agent Darby, it does nothing more than add to the body of evidence to be considered by a jury. Because Officer Bryars is not entitled to State-agent/peace-officer immunity on Howard’s claims that he failed to monitor Bowens in the manner prescribed in paragraph 7 of the order, the trial court erred in entering a summary judgment in his favor on the ground of immunity, only insofar as that claim is concerned.

B. Chief McKinley

Howard’s claims against Chief McKinley are based on allegations that he “negligently or wantonly failed to implement and/or enforce procedures relating to the identification and handling of potentially suicidal inmates,” and, more specifically, that he “negligently or wantonly failed to train [Officer Bryars] in the identification and handling of potentially suicidal inmates.” Howard’s brief in opposition to defendants’ motion for summary judgment. In particular, Howard states that “[djuring Chief McKinley’s tenure, which began in 1996, there [have] been several suicides and suicide attempts by inmates at [the City police department] prior to Bowens’s death,” Howard’s appellate brief, at 46, including an apparent suicide attempt by Bowens during a previous incarceration. She suggests that he failed to adjust his policies in response to those occurrences, and that he failed to avail himself and his police department of certain jail-management training seminars dealing with the foreseeability of inmate suicides.

Simply stated, the claims against Chief McKinley allege faulty training and supervision. It is undisputed that Chief McKinley is responsible for the “day-to-day operations of the [police] department and the city jail.” Affidavit of Chief McKinley. Those activities fall squarely within category (2) of the Cranman formula:

“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
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel .... ”

Cranman, 792 So.2d at 405 (first emphasis original; subsequent emphases added).

Howard directs us to no statute, rule, or regulation binding on Chief McKinley that purports to direct him in a particular manner as to the “administration of [his] department,” or to the training and supervision of its personnel. She merely contends that Chief McKinley’s department has failed “to implement modern penalogical practices such as intake screening forms or processes, removal of potentially lethal means of suicide such as shoe strings and belts (even after recommendations by the ABI),” and, in this respect, has “lagged behind evolving standards of detention and incarceration.” Howard’s appellate brief, at 50. These allegations are based, however, on statistics regarding annual suicide rates from general publications, such as, National Institute of Corrections, U.S. Dep’t of Justice, Prison Suicide: An Overview and Guide to Prevention (1995).

Thus, there is a conspicuous absence of binding authority as to how to identify and handle a potential suicide risk and what precautions to take in any particular case. In the final analysis, the responsibility falls upon Chief McKinley to formulate suicide-prevention rules for his department, based on a myriad of factors, including the availability of resources and personnel. Category (2) of the Cranman formula expressly contemplates this scenario.

In this connection, Howard argues that category (2) does not specifically mention “training.” She says: “In category (2)(d), this Court identified certain conduct of supervisory personnel such as Chief McKinley as immune. This Court included hiring, firing, transferring, assigning or supervising. It did not include training.” Howard’s appellate brief, at 41 (emphasis added). Thus, she argues, “the conduct that is challenged in this case, i.e., training, implementing/enforcing procedures, and identification and handling of potentially suicidal persons in confinement, [does] not fit within any category of conduct recognized by [Cranman] as immune.” Id. Once again, Howard reads Cranman too rigidly. “[T]he situations listed in subpar-agraphs (2)(a)-(d) of the Cranman immunity rule are expressly only ‘examples’ of the general principle stated in paragraph (2) itself.” Ryan v. Hayes, 831 So.2d 21, 31 (Ala.2002). Category (2)(a)-(d) includes “training,” as well as “supervising.”

Howard has made no showing- — or argument — that Chief McKinley acted willfully, maliciously, fraudulently, in bad faith, or beyond his authority. Thus, Howard has not met her burden to show that Chief McKinley’s conduct falls within an exception to State-agent immunity. The trial court did not err, therefore, in entering a summary judgment in his favor. We next address Howard’s claims against the City.

C. The City

Howard contends that the City is “vicariously liable for the neglect, carelessness and unskillfulness” of Chief McKinley and Officer Bryars. It is well established that, if a municipal peace officer is immune pursuant to § 6-5-338(a), then, pursuant to § 6 — 5—338(b), the city by which he is employed is also immune. Section 6-5-338(b) provides: “This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers.” (Emphasis added.) See Ex parte City of Gadsden, 781 So.2d 936, 940 (Ala.2000). On the other hand, if the statute does not shield the officer, it does not shield the city. Borders v. City of Huntsville, 875 So.2d 1168, 1183 (Ala.2003).

In this case, § 6-5-338 shields the City from liability for the alleged “neglect, carelessness and unskillfulness” of Chief McKinley. Thus, the trial court correctly entered a summary judgment for the City with respect to the claims against Chief McKinley. However, the statute does not shield the City from liability for the alleged “neglect, carelessness and uns-killfulness” of Officer Bryars, based on evidence indicating that he failed to comply with paragraph 7 of the order. Insofar as the summary judgment for the City was entered with respect to those claims, the trial court erred.

II. Summary

In summary, the judgment in favor of Chief McKinley is affirmed. The judgment in favor of Officer Bryars is reversed, to the extent of the claims alleging wrongful monitoring of Bowens under paragraph 7 of the order, and the case is remanded for further proceedings. To the extent that judgment disposed of claims based on portions of the order or manual contemplating the exercise of judgment, as discussed above, the judgment is affirmed. To the extent the judgment in favor of the City is based on vicarious liability for the acts of Chief McKinley, the judgment is affirmed. To the extent that judgment is based on vicarious liability for the acts of Officer Bryars for which Bryars is not immune, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

I concur fully in the main opinion. I write specially only to add a couple of supportive observations.

The main opinion correctly holds “that a State agent acts beyond authority and is therefore not immune when he or she fails to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.” 887 So.2d at 208 (internal quotation marks omitted, emphasis in main opinion). The second exception to immunity as stated by Cranman excepts conduct “beyond [the State agent’s] authority.” 792 So.2d at 405. A State agent’s violating applicable rules or regulations is, of course, “beyond his or her authority,” id.

In further support of part “B. [Immunity of] Chief McKinley ” in the main opinion, I add that immune category (1) of the Cranman restatement, immunizing a State agent’s “formulating plans, policies, or designs,” 792 So.2d at 405, immunizes Chief McKinley’s failure to adapt the policies of his department as the plaintiff contends he should have adapted them.

      . This case does not present the issue whether the immunity afforded by § 6-5-338(a) applies to a city-jail guard who is not a regular municipal police officer.

      . Act No. 746, § 3, provided, in part:
      “Whenever any peace officer or other law enforcement officer of this state or any political subdivision of this state shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to commit any assault with a deadly instrument upon such officer.... ”

      . The manual was promulgated by Chief McKinley's predecessor.

      . Howard also contends that Bryars is liable for failing to remove Bowens’s shoelaces. However, this argument suffers the same infirmities inherent in her argument relating to paragraph 10 of the order, because Howard points to no binding rule or regulation negating the exercise of judgment as to when an inmate’s shoelaces must be removed.


author: HOUSTON, Justice. JOHNSTONE, Justice

text:
    Ex parte Larry Eugene HUTCHERSON. (In re Larry Eugene Hutcherson v. State of Alabama).
    1030306.
    Supreme Court of Alabama.
    Feb. 13, 2004.
    A1 Pennington, Mobile, for petitioner.
    William H. Pryor, Jr., atty. gen., and Regina F. Speagle, asst. atty. gen., for respondent.
   HOUSTON, Justice.

WRIT DENIED.

SEE, LYONS, and WOODALL, JJ., concur.

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

My special writing in Ex parte Hutcherson, 847 So.2d 386, 388-89 (Ala.2002), says, in pertinent part:

“Hutcherson has clearly articulated his claim of ‘excusable neglect’ to warrant a Rule 1.3(b), Ala. R.Crim. P., extension of the two-year deadline for filing his Rule 32 petition, and he has offered proof for consideration by the trial court. Hutcherson’s Rule 32 counsel has candidly admitted his own mistake of law in interpreting Rule 32.2(c), Ala. R.Crim. P., and Rule 41(b), Ala. R.App. P., for the deadline. Hutcherson himself is not learned in the law. He may not be bound by the errors of his counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Robinson v. Murphy, 69 Ala. 543, 547 (1881) (‘The power of an attorney is not co-equal, co-extensive, or the equivalent of that of the client.’).”

Whether Rule 1.3(b), Ala. R.Crim. P., can authorize an extension of the Rule 32.2(c), Ala. R.Crim. P., deadline for filing a Rule 32, Ala. R.Crim. P., petition for post-conviction relief would be a question of first impression for this Court, reviewable pursuant to Rule 39(a)(1)(C), Ala. R.App. P. Ex parte Siebert, 778 So.2d 857, 858 (Ala.2000) (Johnstone, J., concurring specially).

In the petition for writ of certiorari now before us, however, Hutcherson does not ask us to decide this particular question of first impression. As his petition does not present any other issue with a probability of merit, I concur in denying certiorari review.


author: WOODALL, Justice.

text:
    GENERALI US BRANCH v. THE BOYD SCHOOL, INC.
    1021393.
    Supreme Court of Alabama.
    Feb. 13, 2004.

      Jeff W. Parmer of Corley, Moncus & Ward, P.C., Birmingham, for appellant.
    William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellee.
   WOODALL, Justice.

Generali US Branch (“Generali”) appeals from the trial court’s summary judgment for The Boyd School, Inc. (“the School”), in the School’s action against Generali. We affirm.

The School is a residential institution for boys with learning and behavioral problems. Its facilities include a group home for older boys. The residents of the group home are supervised by houseparents. In April 1999, Joe Ingram and his wife, Kelly, were the houseparents during the week, and Joe’s brother, John Ingram, and his wife, Amy, were the houseparents during the weekends.

John and Amy have a young daughter, Victoria (“Torey”), who was at the group home on Friday, April 23, 1999. Joe and Kelly were keeping Torey while John and Amy went home to pack clothes in preparation for their weekend-houseparent duty. While Joe and Kelly were keeping Torey, a group-home resident telephoned from a nearby restaurant where he worked, telling the person who answered the telephone that he needed his Social Security card, which was in his wallet at the home. Joe decided he would take the wallet to the resident at the restaurant.

As Joe prepared to leave the group home in his personal automobile, two residents asked to ride with him, and Joe allowed them to do so. As Joe was placing his nine-month-old son in the car, Torey came out of the house and asked if she could go with him. Joe told Torey that she could not go, and he instructed her to go back inside the group home. Joe finished putting his son into the car, and he did not see Torey; he assumed she had followed his direction and gone back inside.

In moving his automobile from the parking space, Joe first backed up and then moved forward. As he moved forward, he heard a noise beneath the automobile. Joe stopped, opened his door, and looked beneath the vehicle, where he found Torey. Torey suffered serious injuries as the result of the accident.

At the time of the accident, a comprehensive general liability insurance policy issued by Generali to the School was in effect. The liability coverage of the policy provided, in pertinent part, that “[Genera-li] will pay on behalf of the [School] all sums which the [School] shall become legally obligated to pay as damages because of ... bodily injury ... to which this insurance applies, ... and [Generali] shall have the right and duty to defend any suit against the [School] seeking damages on account of such bodily injury.” The liability coverage was subject to certain exclusions, including an automobile exclusion, which provided, in pertinent part:

“This insurance does not apply ... to bodily injury ... arising out of the ownership, maintenance, operation, use, loading or unloading of ... any automobile ... owned or operated by or rented or loaned to any insured, or ... any other automobile ... operated by any person in the course of his employment by any insured.”

This automobile exclusion was subject to a parking exception, which provided:

“[B]ut this exclusion does not apply to the parking of an automobile on premises owned by, rented to or controlled by the named insured or the ways immediately adjoining, if such automobile is not owned by or rented or loaned to any insured.”

The policy included an endorsement modifying the liability coverage with respect to the operation of any school. Specifically, the endorsement included a transportation-of-pupils exclusion, which provided:

“4. Transportation of Pupils: With respect to the transportation of students or pupils, [the automobile exclusion] of the policy [is] replaced by the following:
“The insurance does not apply to bodily injury ... arising out of the ownership, maintenance, operation, use, loading or unloading of any ... automobile ... owned, operated or hired by or for the insured or any officer, employee or member of the teaching, supervisory or administrative staff thereof. For the purpose of this exclusion the word ‘hired’ shall be deemed to include any contract to furnish transportation of pupils to and from schools.”

Amy, acting individually and as Torey’s mother and next friend, and John sued the School. They alleged that the accident resulted from Joe’s negligence or wantonness while he was acting within the line and scope of his employment by the School. The complaint sought both compensatory and punitive damages. The School later sued Generali, seeking, in pertinent part, a declaration that Generali was obligated by the general liability policy it issued to the School “to defend and indemnify the [School] ... with respect to the ... underlying motor vehicle accident and civil action.”

Generali filed an answer, asserting in its answer a counterclaim. In its pleadings, Generali alleged that the policy provided the School no coverage with respect to the accident, relying upon the automobile exclusion. Shortly thereafter, the School filed a motion for a summary judgment, contending that coverage for the accident existed under the parking exception to the automobile exclusion. In response to the School’s motion, Generali filed its own motion for a summary judgment, contending that the transportation-of-pupils exclusion precluded coverage and that the parking exception to the automobile exclusion was inapplicable.

The trial court held hearings on the summary-judgment motions on February 18 and March 17, 2003. On March 17, Generali filed a motion to amend its answer and counterclaim to add statements that it was relying upon the transportation-of-pupils exclusion. The School objected to the motion, arguing it was untimely. Generali’s motion to amend remained pending until April 7; on that day, the trial court granted the School’s motion for a summary judgment, denied Generali’s motion for a summary judgment, and entered conflicting orders concerning Generali’s motion to amend.

In its summary-judgment order, the trial court “declare[d] that [the School] has liability coverage under the policy issued to it by Generali ... for the claims asserted against [the School] in the underlying civil action [brought by the Ingrams], and Generali ... is obligated under the policy to defend and indemnify [the School] against these claims.” In that same order, the trial court denied Generali’s motion to amend, and “disallow[ed] Generali’s proposed amendment to its answer and counterclaim.” Further, the trial court stated “that had it granted the motion to amend, it would not have affected [its] rulings on the motions for summary judgment.” However, the trial court, without explanation, entered another order on April 7, and that order, appearing on the face of Gener-ali’s motion to amend, stated simply, “MOTION GRANTED.” (Emphasis added.)

Generali and the School agree that this appeal presents two substantive issues: (1) Whether the transportation-of-pupils exclusion precludes coverage for the claims arising from Torey’s bodily injuries, and, if not, (2) whether the parking exception to the automobile exclusion provides coverage for those claims. While Generali also raises procedural issues concerning the trial court’s conflicting orders on Generali’s motion to amend its answer and counterclaim, our resolution of the substantive issues pretermits any discussion of the procedural issues.

The transportation-of-pupils exclusion applies, replacing the automobile exclusion, only “[w]ith respect to the transportation of students or pupils.” In its principal brief, Generali argues:

“In the present case, it is undisputed that the injury to the minor plaintiff arose from Joe Ingram’s use of an automobile, that at the time of the loss Ingram was an employee of Boyd School, and that Ingram was operating an automobile that he owned. Accordingly, the only issue concerning the application of this provision is whether the injury to the minor plaintiff occurred ‘with respect to the transportation of students or pupils.’
“... [I]t is undisputed that, at the time of the loss, two students of Boyd School were riding in Joe Ingram’s car ... and that Joe Ingram was an employee of Boyd School and was operating a vehicle that he owned. It is also undisputed that, at the time, Joe Ingram was on an errand for Boyd School and was acting within the scope of his employment. In light of these undisputed facts, it is clear that the transportation of pupils exclusion applies under the facts of the claim against Boyd School and that coverage is, therefore, excluded under the terms of the transportation of pupils exclusion contained in the colleges or schools endorsement.”

Generali’s brief, at 34, 39. The School, on the other hand, argues that the transportation-of-pupils exclusion does not apply under the undisputed facts of this case. We agree with the School.

“Exceptions to coverage in a policy of insurance must be interpreted as narrowly as possible in order to provide maximum coverage of the insured.” Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 695 (Ala.2001). Therefore, we hold that, although two students were in Joe’s automobile at the time of the accident, the underlying claim did not arise “[w]ith respect to the transportation of [those] students.” Indeed, Joe has not been accused of breaching any duty he owed to the students; instead, he has been accused of breaching duties owed by him to his young niece. Generali has cited no ease compelling a contrary conclusion concerning the scope of the exclusion. In fact, the cases it cites involved injuries to students. See Beatty v. Charlotte-Mecklenburg Bd. of Educ., 99 N.C.App. 753, 394 S.E.2d 242 (1990); Whittington v. Sowela Technical Inst., 438 So.2d 236 (La.Ct.App.1983).

Having concluded that the transportation-of-pupils exclusion is inapplicable, we must now determine whether coverage is afforded by the parking exception to the automobile exclusion. In that regard, Generali argues:

“Under the undisputed evidence in this case, i.e., that the injury to the minor plaintiff arose from Joe Ingram’s use of an automobile in the course of his employment by Boyd School, coverage for the claims against Boyd School would be excluded by the automobile exclusion. However, Boyd School seeks to invoke the provision of the parking exception to the automobile exclusion to bring the claims against it within coverage under the terms of the policy....
“In the present case, it is undisputed that the vehicle being operated by Joe Ingram at the time of the accident was not owned by or rented to Boyd School. However, it is Generali’s position that, at the time of the accident, Ingram’s vehicle had been loaned to Boyd School and that the parking exception does not apply to extend coverage to the loss in question.”

Generali’s brief, at 41. In response, the School argues that Joe’s automobile had not been loaned to it at the time of the accident. We agree with the School.

The parking exception provides no coverage if Joe’s automobile was being “loaned to” the School at the time of the accident. The phrase “loaned to” is not defined in the policy, and this Court has never defined the phrase in a similar context. However, the Court of Civil Appeals construed this phrase in United States Fidelity & Guaranty Co. v. Perry, 361 So.2d 594, 597 (Ala.Civ.App.1978), stating, in pertinent part:

“The evidence does not show ... a loan of the [employee’s] vehicle to or in behalf of [his employer]. The use of his automobile by the employee ... in furtherance of his employer’s interest, even with actual or implied permission, does not of itself show a loan to the employer. Trinity Universal Ins. Co. v. Cincinnati Ins. Co., 513 F.2d 915 (6th Cir.1975); Faribault Canning Co. v. Northwestern Nat’l Cas. Co., 298 F.2d 58 (7th Cir.1961).”

Cf. American Econ. Ins. Co. v. Thompson, 643 So.2d 1350, 1355-56 (Ala.1994)(an employee was using a third person’s vehicle in furtherance of employer’s business). We agree with the Court of Civil Appeals that where nothing more than an employee’s use of his own vehicle in furtherance of his employer’s business has been shown, a loan of the vehicle to the employer has not been established. Therefore, the parking exception provides coverage under the facts of this case if the accident involved “the parking of [Joe’s] automobile.”

According to Generali, Joe was moving his vehicle from a parking space on the School’s premises at the time of the accident.

“Joe got into his car and backed out of the parking space. Joe then began to pull forward and heard a noise from beneath the car. Joe then looked under the car and saw that Torey was under the car. Joe testified that the accident occurred as he was backing out of a parking space in a parking area on Boyd School property adjacent to the group home. At the time of the accident, Dr. Boyd [president of the School] happened to be driving in front of the group home and saw Torey underneath Joe’s car. After seeing Torey, Dr. Boyd called out to Joe and he stopped his car. Dr. Boyd testified that Joe had backed up approximately 10 feet and had pulled forward no more than 15 feet at the time of the accident.”

Generali’s brief, at 9 (citations to the record omitted). Generali contends that, “[u]nder these facts, [Joe] was not engaged in parking his vehicle at the time of the accident.” Id. at 48-49. The School, however, argues that “the accident [clearly] arose from the parking of an automobile on [the] School’s premises.” The School’s brief, at 19. We agree with the School.

Speaking of the parking exception, Gen-erali states: “This provision has been routinely referred to in other jurisdictions as a ‘parking attendant’ or ‘valet parking’ exception. Lee-Lipstreu v. Chubb Group, 329 F.3d 898, 902 (6th Cir.2003).” Genera-li’s brief, at 40. Obviously aware that parking attendants regularly park and, later, “unpark” vehicles, Generali does not argue that the act of moving a vehicle from a parking space is not within the scope of “parking,” as that term is used in its policy. Instead, citing only Sears, Roebuck & Co. v. Acceptance Insurance Co., 342 Ill.App.3d 167, 275 Ill.Dec. 965, 793 N.E.2d 736 (2003), Generali argues that Joe had completed the act of “unparking” before the accident occurred and that the parking exception is therefore not applicable.

In Sears, a pedestrian was struck by a van driven by Alfredo Jijón, an employee of a Sears automotive center. The pedestrian obtained a judgment against Sears and Jijón, who sought indemnification from Acceptance Insurance Company. “Acceptance ... argued that because the accident causing [the pedestrian’s] injuries fell within the ‘automobile exclusion’ of [its] policy, it had no duty to defend or indemnify.” 342 Ill.App.3d at 170, 275 Ill.Dec. 965, 793 N.E.2d at 738. After the trial court entered a summary judgment for Acceptance, Sears and Jijón appealed, “contending] that the trial court erred in granting summary judgment because it failed to consider the ‘parking exception’ contained in the policy.” 342 Ill.App.3d at 169, 275 Ill.Dec. 965, 793 N.E.2d at 738. More specifically, “[t]hey argue[d] that because Jijón was ‘unparking’ the van when [the pedestrian] was struck, the parking exception contained in the policy required coverage from its insurer[].” 342 Ill.App.3d at 170, 275 Ill.Dec. 965, 793 N.E.2d at 739.

In Sears, as in this case, the undisputed facts surrounding the accident were important. The Illinois court summarized the evidence presented at the underlying trial, stating:

“The evidence at trial established that prior to Jijon’s entering the van, it had been worked on at the automotive center and was in a bay on an alignment rack. When asked at trial what his purpose in entering the van was, Jijón responded that he had been asked ‘to pull the vehicle out and road test it, make sure it drove straight, and that was it.’ Jijón explained that before striking [the pedestrian], he had backed the van off the alignment rack and continued backing the vehicle to a perimeter road. Once there, he waited until ‘several cars went by’ and then proceeded to continue backing, until the van came to rest upon [the pedestrian]. Jijón explained that when [the pedestrian] was struck, he had intended to back the vehicle across the eastbound lane and dividing line of the perimeter road into the westbound lane.”

342 Ill.App.3d at 173, 275 Ill.Dec. 965, 793 N.E.2d at 741-42. Under those facts, Sears and Jijón contended that the accident occurred while Jijón was “unparking” the vehicle, and that, therefore, the parking exception provided coverage. In support of their contention, they cited cases that “referenced the process of unpark-ing.” 342 Ill.App.3d at 175, 275 Ill.Dec. 965, 793 N.E.2d at 743. However, the court rejected their contention and affirmed the summary judgment for Acceptance, stating:

“[Sears and Jijon’s] citation to cases using the word ‘unpark’ does nothing to advance their claim of error. Webster’s dictionary defines ‘unpark’ as ‘to remove from a parking place.’ Webster’s Third New International Dictionary 2505 (1993). It appears from photographs contained in the record that the location where the van struck [the pedestrian] was more than just a few feet from its original position on the alignment rack. According to Acceptance, Jijón had traveled about 34 feet before [the pedestrian] was hit. At the time of the accident, Jijón had already moved the van from its parking place, which was the bay of the automotive center, and continued traveling, albeit in reverse, across the apron until he came to the perimeter road. Jijón then stopped, waited for traffic to pass and then again started to move in reverse. It was at this point that [the pedestrian] was struck.
“Contrary to [Sears and Jijon’s] view, instead of characterizing this movement as ‘unparking,’ we find it more appropriate under the facts of this ease to characterize it as backing up to get to a destination; the westbound lane of the perimeter road. Therefore, we find that the parking exception does not require Acceptance ... to indemnify [Sears and Jijón]. Thus, the trial court did not err in granting summary judgment in favor of [Acceptance].”

342 Ill.App.3d at 175-76, 275 Ill.Dec. 965, 793 N.E.2d at 743.

Contrary to Generali’s conclusory arguments, Sears does not support its contention that Joe was not engaged in parking his vehicle at the time of the accident. Concerning Sears, Generali states:

“However, the court in [Gears] concluded that the automotive center employee, who was backing the vehicle out of a service bay tohere it had been parked to take the vehicle on a road test was not engaged in parking the vehicle for purposes of the parking exception and that coverage was, therefore, excluded.”

Generali’s brief, at 49-50 (emphasis added). Generali misstates the facts in Sears, where it was undisputed that Jijón had already moved the vehicle from the service bay and was operating it on a roadway at the time of the accident. Here, on the other hand, Generali’s own version of the facts indicates without dispute that Torey was injured as Joe was leaving a parking space in a designated parking area on the School’s property. There is no evidence indicating that Joe had moved his vehicle any significant distance before Torey was struck. Obviously, unlike Jijón, Joe had not removed his vehicle from its parking place and entered a roadway before the accident. As the School argues, “the accident [clearly] arose from the parking of an automobile on [the School’s] premises.”

Thus, under the facts of this case, and based upon the arguments submitted, we conclude that the parking exception to the automobile exclusion provided coverage for the underlying accident. For that reason, the trial court did not err in granting the School’s motion for a summary judgment, or in denying Generali’s motion for a summary judgment. The judgment of the trial court is affirmed.

AFFIRMED.

HOUSTON, SEE, LYONS, and JOHNSTONE, JJ., concur.


author: SEE, Justice. LYONS, Justice

text:
    Gregory DENNIS v. Walter NORTHCUTT.
    1021266.
    Supreme Court of Alabama.
    Feb. 13, 2004.

      Joseph J. Boswell, Mobile, for appellant.
   SEE, Justice.

In February 1998, Gregory Dennis retained attorney Walter Northcutt to represent him in a legal-malpractice action against the law firm Meelheim and Rea, P.C. Northcutt represented Dennis in his suit against Meelheim and Rea; however, on September 9, 1999, Northcutt moved to withdraw as counsel, stating that he and Dennis were no longer able to work together and that it would be in Dennis’s best interest to be represented by another attorney. On February 17, 2000, the trial court granted Northcutt’s motion. Dennis thereafter proceeded pro se in his action against Meelheim and Rea; however, the case was dismissed on December 7, 2000. On February 14, 2002, Dennis filed the present legal-malpractice action against Northcutt. Dennis’s complaint alleged that Northcutt’s negligence and fraud was the reason his action against Meelheim and Rea was dismissed. Northcutt, arguing that the two-year statute of limitations for legal-malpractice actions applies and that Dennis did not file his action within the statutory limitations period, moved for a summary judgment. The trial court granted Northcutt’s motion and entered a summary judgment in his favor. Dennis now appeals, arguing that his action was filed within the two-year limitations period. We agree.

I.

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).”

Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992). Accordingly, this Court reviews de novo the issue whether Dennis’s claims are barred by the two-year statute of limitations for legal-malpractice actions.

II.

In Alabama, all legal-malpractice claims are governed by the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975 (“ALSLA”). Section 6-5-574(a) of the ALSLA states that such claims

“must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided, further, that in no event may the action be commenced more than four years after such act or omission or failure .... ”

“Under § 6-5-574, ‘a legal-malpractice cause of action accrues, and the statute-of-limitations period begins to run, when “the act or omission or failure giving rise to the claim” occurs, and not when the client first suffers actual damage.’ ” Ex parte Seabol, 782 So.2d 212, 214 (Ala.2000) (quoting Ex parte Panell, 756 So.2d 862, 868 (Ala.1999)). Dennis filed his claim against Northcutt on February 14, 2002. Therefore, in order for the claim to be timely, the acts or omissions that form the basis of the claim must have occurred on or after February 14, 2000. Northcutt argued in his summary-judgment motion that, because he did not work on Dennis’s case after he filed the motion to withdraw on September 9, 1999, and because Dennis has not specifically alleged that he committed any negligent acts after that date, any negligent acts he might have committed necessarily occurred before September 9, 1999. Therefore, he argues, the two-year statutory limitations period would have begun to run, at the very latest, on September 9, 1999, and expired on September 9, 2001 — five months before Dennis filed his legal-malpractice action against Northcutt.

However, while Northcutt may be correct that the complaint was filed more than two years after any act giving rise to it occurred, he fails to recognize the exception in § 6 — 5—574(a)—r“if the cause of action is not discovered and could not reasonably have been discovered within such period.... ” In such a circumstance, § 6-5-574(a) allows an action to be commenced “within six months from the date [the cause of action was discovered].” Dennis alleges that, because of Northcutt’s misrepresentations, he did not become aware of Northcutt’s wrongful conduct until November 2001, when he received a response to a complaint concerning Northcutt that he had filed with the Alabama State Bar. Assuming that Northcutt is correct in saying that the statutory limitations period expired on September 9, 2001, because Dennis received that response in November 2001, after the limitations period had run, the plain language of § 6-5-574(a) gave Dennis six months from November 2001 in which to file a legal-malpractice action against Northcutt. His February 14 complaint was filed within that six-month period and was therefore timely.

III.

Dennis has alleged that he was unable to discover Northcutt’s wrongful conduct until November 2001, more than two years after that conduct occurred. He sued Northcutt in February 2002. Because § 6-5-574(a), Ala.Code 1975, allows a legal-malpractice action to be filed within six months of the date the alleged wrongful conduct is discovered, if it was not discovered within two years of its occurrence, Dennis’s claim was not barred by the statute of limitations. Northeutt was not, therefore, entitled to a judgment as a matter of law. For that reason, we reverse the trial court’s summary judgment, and we remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BROWN, HARWOOD, and STUART, JJ., concur.

LYONS, J., concurs in the result.

LYONS, Justice

(concurring in the result).

Consistent with my views expressed in my special writing in Ex parte Panell, 756 So.2d 862, 872 (Ala.1999) (“the limitations period [in § 6-5-574] begins to run on the date the injury or harm occurs and not on the date of the occurrence of the act that caused the injury or harm”), I respectfully concur in the result.

      . Dennis alleged that Meelheim and Rea had failed to adequately represent him in an employment-discrimination action he had brought against his former employer, Scott Paper Company.

      . Northcutt has not filed a brief with this Court on appeal.

      . Dennis asserts that in that response he obtained materials relevant to his case against Meelheim and Rea that had not been included in his case file when Northcutt gave him the file after Northcutt withdrew as his counsel. The materials indicated, he claims, that Northcutt had been misleading both Dennis and opposing counsel about the status of discovery in the case.

      .Section 6-5-574(b), Ala.Code 1975, applies the saving provision for fraud actions generally to legal-malpractice actions. See § 6-2-3, Ala.Code 1975. Therefore, Dennis may actually have had two years from the date he discovered the alleged fraud within which to file his complaint. However, because Dennis's complaint was filed within the six-month period allowed by § 6-5-574(a), it is unnecessary to determine whether § 6-2-3 is implicated in this case.