Howard v. City of Atmore12/12/2003
Rehearing denied February 20, 2004.
Gladys Bowens Howard, as administratrix 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 law 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, " his statute, by
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