State-Agent Immunity – Rule 56(f), Ala. R. Civ. P.

Burton v. Hawkins, et al.; Hood, etc. v. Hawkins, et al., [Ms. 1200825; 1200831, Mar. 11, 2022] __ So. 3d __ (Ala. 2022). The Court (Bolin, J.; Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur) affirms summary judgments entered by the Calhoun Circuit Court in favor of John Hawkins, Mark Steltenpohl, and Charles Savrda (“the Auburn defendants”), members of the Auburn University Geosciences Department. Plaintiff Howard Cole Burton was severely injured and Nicholas Lawrence Hood was killed when struck by a vehicle driven by Fulkerson, an impaired driver, who lost control. At the time they were struck, Burton and Hood were participating in a field exercise conducted by the Auburn Geosciences Department at a geologically significant site near Gadsden on U.S. Highway 431. Ms. **2-3. The plaintiffs argued that state-agent immunity was not available because (1) the Auburn defendants had not required the students to wear high-visibility safety clothing apparel on the day of the accident, as required by § 6D.03 of the Manual on Uniform Traffic Control Devices and (2) that Hawkins had been standing on the paved shoulder at the edge of the southbound lanes of the highway at the time of the accident, in violation of § 32-5A-215(b), Ala. Code 1975, which requires pedestrians to walk as far as practicable from the edge of the roadway. Ms. **12-13.

The Court affirms the circuit court’s decision that the Auburn defendants were entitled to state-agent immunity. The Court first concludes the defendants “met their initial burden of demonstrating that their conduct fell within category (5) of the Cranman restatement – ‘exercising judgment in the discharge of duties imposed by statute, rule, or regulation in ... educating students.’” Ms. *20. To avoid the immunity defense, the plaintiffs then had

“To show that the Auburn defendants ‘acted willfully, maliciously, fraudulently, in bad faith, or beyond their authority.’ Giambrone v. Douglas, 874 So. 2d 1047, 1052 (Ala. 2003). ‘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 at 178). The rules and/or regulations must be sufficiently detailed so as to “‘remove a State agent’s judgment in the performance of required acts.’” Giambrone, 874 So. 2d at 1055 (quoting Ex parte Spivey, 846 So. 2d 322, 333 (Ala. 2002)).

The plaintiffs argue that the Auburn defendants acted beyond their authority in failing to require the students to wear high-visibility safety apparel during the Gadsden exercise in accordance with provisions contained in the MUTCD. The Auburn defendants argue that the MUTCD did not apply to their planning and overseeing the Gadsden exercise; therefore, the Auburn defendants contend that the plaintiffs cannot demonstrate that the Auburn defendants acted beyond their authority in failing to require the students to wear high-visibility safety apparel during the Gadsden exercise.

Ms. **20-21.

The Court observes that “[t]he MUTCD is applicable to the students only if the students fall within the definition of ‘worker’ as that term is defined in the MUTCD.” Ms. *30. Applying the noscitur a sociis rule of construction, the Court holds that the students were not workers under the MUTCD. The Court holds the students “were not working within the scope of highway construction, highway maintenance, or improving highway safety. Accordingly, the students do not fall with the definition of the term ‘worker’ as that term is defined by the FHWA in the MUTCD.” Ms. *33.

The Court also rejects the argument that Hawkins was not immune because he violated Section 32-5A-215(b), Ala. Code 1975, which provides: “Where a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway.” The Court explains “the use of the term ‘practicable’ in the statute vested Hawkins with the discretion to determine where to stand on the shoulder of the highway as he supervised the students.” Ms. **37-38.

The Court also rejects plaintiffs’ Rule 56(f) argument predicated on their need to depose the impaired driver before responding to the Auburn defendants’ summary-judgment motion because “[a]ny potential evidence obtained from Fulkerson would not have been ‘essential’ to the determination of whether the Auburn defendants acted beyond their authority by failing to follow the MUTCD or of whether Hawkins acted beyond his authority in failing to comply with § 32-5A-215(b). Accordingly, we cannot say that the circuit court exceeded its discretion.” Ms. *40.

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