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STATE-AGENT IMMUNITY - DRIVER OF MUNICIPAL FIRE TRUCK - "PATROLLING" - EX PARTE TERRENCE VENTER AND THE CITY OF SELMA

Ex parte Terrence Venter and the City of Selma, [Ms. 1160539, Sept. 22, 2017] __ So. 3d __ (Ala. 2017). In this decision by Justice Sellers (Stuart, C.J., and Parker and Main, JJ., concur, Murdock, J., concurs specially, and Bolin, Shaw, Wise, and Bryan, JJ., dissent), the Court denies a petition for writ of mandamus sought by the City of Selma and Terrence Venter, a Selma fireman who was driving a fire truck which collided at an intersection with a vehicle driven by Aubrey Vick. Vick was killed in the collision.

Venter was not responding to an emergency call at the time of the crash. Instead, Venter testified that he was “patrolling” which he described as “driving around the City of Selma, ‘learning streets and areas, and inspecting streets and layout.’” Ms. *14. The City of Selma and Venter contended that these actions constituted formulating plans, policies, or designs and entitled the City and Venter to state-agent immunity under the rules set forth in Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000). A sharply-divided Court rejected this argument, noting that

Venter and the City have not provided this Court with any caselaw from this State or any other jurisdiction in which immunity has been extended to a fireman who was engaged in routine patrolling when an alleged tort occurred. And, assuming, without deciding, that the act of “patrolling” could somehow be equated with formulating policy or procedure, Venter, by his own admission, was not engaged in the act of patrolling when the accident occurred.

Ms. *9-10. Venter acknowledged that he was returning to the station when the collision occurred. Ms. *10. The dissenting opinion by Justice Shaw, joined by Justice Wise, would have granted the writ and dismissed the case based on state-agent immunity as “it appears that in the instant case, the firefighter was both learning and determining routes and locations in the City as part of planning responses to future fires or other emergencies.” Ms. *14.

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