Walters v. De’Andrea and Progressive Cas. Ins. Co., [Ms. 1190062, June 5, 2020] __ So. 3d __ (Ala. 2020). The Court (Mendheim, J.; Parker, C.J., and Wise, Sellers, Stewart, and Mitchell concur; Bryan, J., concurs in the result; Bolin and Shaw, JJ., dissent) reverses the Montgomery Circuit Court’s summary judgment conferring State-agent immunity on Montgomery Police Department (MPD) Patrol Officer Jessica De’Andrea for claims asserting that she struck Walters’s motorcycle from the rear with her patrol vehicle as both were waiting for a red light to change. The officer testified that at the time of the accident, she had completed her patrol duties and was returning to headquarters to turn in her paperwork in conformance with MPD policy. Ms. *2.
The Court holds Officer De’Andrea was not entitled to immunity, explaining
“A government employee sued for a tortious act committed in the line and scope of his employment may, in an appropriate case (i.e., where the employee has breached a duty he owes individually to a third party), be sued individually.” Wright v. Cleburne Cty. Hosp. Bd., Inc., 255 So. 3d 186, 191 (Ala. 2017). The Wright Court provided as an example that “a driver on an errand for his employer owes an individual duty of care to third-party motorists whom he encounters on public roadways.” Id.
The Cranman Court itself observed: “As an example, there should be some recognizable difference in legal consequence between, on the one hand, a prison warden’s decision not to fire or not to sanction the entity contracting with the State Department of Corrections to provide medical services and, on the other hand, a decision by the driver of a pickup truck on how to drive through or around potholes while transporting prisoners. Each situation involves judgment or discretion. Under our recent cases, the warden is immune [citing Ex parte Davis, 721 So. 2d 685 (Ala. 1998),] and the truck driver is not [citing Town of Loxley v. Coleman, 720 So. 2d 907 (Ala. 1998)].” Ex parte Cranman, 792 So. 2d at 404 (emphasis added). 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 Venter and other authorities, such an action is not clothed with State-agent immunity.