Ex Parte Fielding, 1101327 (Ala. 12-9-2011)

86 So. 3d 354, 2011 Ala. LEXIS 199, 2011 WL 6117907
CourtSupreme Court of Alabama
DecidedDecember 9, 2011
Docket1101327
StatusPublished
Cited by4 cases

This text of 86 So. 3d 354 (Ex Parte Fielding, 1101327 (Ala. 12-9-2011)) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Fielding, 1101327 (Ala. 12-9-2011), 86 So. 3d 354, 2011 Ala. LEXIS 199, 2011 WL 6117907 (Ala. 2011).

Opinion

STUART, Justice.

Randy Fielding petitions this Court for a writ of mandamus directing the Walker Circuit Court to vacate its order denying his motion for a summary judgment and to enter a summary judgment based on his claim to State immunity. We grant the petition and issue the writ.

Facts and Procedural History

In November 2004, Debra Jackson and Jerry Jackson sued Fielding, individually and in his capacity as a deputy sheriff, after Fielding, while he was on duty, entered their property and shot their dog. The complaint alleged claims of negligence, wantonness, the tort of outrage, intentional infliction of emotional distress, trespass to person, and trespass on property.1 The Jacksons sought “compensatory, actual, incidental, and punitive damages, plus attorney fees.” Fielding moved for a summary judgment, arguing that because he was acting within the line and scope of his employment as a sheriffs deputy at the time of the incident, he was entitled to State immunity from the Jack-sons’ suit.

In his affidavit submitted in support of his summary-judgment motion, Fielding stated that he is a deputy for the Walker County Sheriffs Department. He explained that he and his wife were neighbors of the Jacksons and that their residences were located across the street from an elementary school. He stated that the incident that is the basis of the complaint occurred early one weekday morning before children had started arriving for school. He explained that he was on duty with the sheriffs department and that he received a telephone call informing him that his wife and their dog had been attacked in front of the Jacksons’ house by a large dog, described as a pit bull/rottweiler mix. Fielding stated that he drove to his residence to check on his wife and their dog and that he then assisted a City of Cordova police officer in locating and restraining the dog that had attacked his wife and dog. Fielding explained that he and the City of Cordova police officer found in the Jacksons’ yard an unrestrained, agitated dog matching his wife’s description of the dog that had attacked her and their dog. According to Fielding, when he and the police officer entered the Jacksons’ yard to approach the house to speak with the Jacksons about the unrestrained dog, “[t]he dog galloped toward us in a menacing manner, growling and showing his teeth.” Fielding stated that [356]*356the dog leapt at his neck and he shot at the dog and that he had to fire three shots before the dog ceased the attack. Fielding explained:

“The dog that was shot was loose of any restraint, free to leave its own yard, and acting viciously when I approached the [Jacksons’] house. Because of the time of day, schoolchildren would soon be arriving at the school and get off buses directly across from the [Jack-sons’] house. The school is located directly across the street from and within approximately thirty feet of the [Jack-sons’] residence. In my capacity as Deputy Sheriff, I considered the [Jack-sons’] dog to pose a danger to any pedestrians that might pass near the [Jacksons’] house, including children arriving for school.
[[Image here]]
“Before, during, and after this encounter with the dog, I was acting in my professional capacity as a law enforcement officer, sworn to protect the public and fired upon the dog only in self-defense and in defense of any other pedestrians who might enter the area, particularly the elementary school children that would soon arrive by bus across the street from the Jacksons’ home.”

Fielding also submitted an excerpt from Debra Jackson’s deposition testimony in which she stated that at the time of the incident Fielding was wearing his deputy sheriffs uniform and that a Walker County Sheriffs Department vehicle was parked in front of the Jacksons’ house.

The Jacksons opposed Fielding’s summary-judgment motion, arguing that Fielding was not entitled to State immunity because, they said, he was not acting in his official capacity as a deputy sheriff when he entered their property and shot their dog. Specifically, they argued that because the incident occurred within the police jurisdiction of the City of Cordova and, consequently, within the jurisdiction of the City of Cordova police department, Fielding, who was not an employee of the City of Cordova police department but who was rather an employee of Walker County Sheriffs Department, was acting outside the line and scope of his employment. In support of their argument, the Jacksons submitted their deposition testimony, which established that the incident occurred within the police jurisdiction of the City of Cordova. They further argued that, even if Fielding was acting within the line and scope of his employment as a deputy sheriff at the time of the incident, Fielding was not entitled to State immunity because his actions were willful and malicious. In support of this argument, the Jacksons submitted the deposition of Jerry Jackson in which he stated that he had witnessed Fielding beat the dog with his baton and use excessive force to restrain the wounded dog.

The trial court denied Fielding’s motion. Fielding petitions this Court for a writ of mandamus directing the trial court to vacate its order denying his motion for a summary judgment and to enter a summary judgment for him based on the doctrine of State immunity.

Standard, of Review

“ ‘This Court has stated:
“ ‘ “ ‘While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Pur-vis, 689 So.2d 794 (Ala.1996)....
[[Image here]]
'Ex parte Turner, 840 So.2d 132, 135 (Ala.2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000)). A writ [357]*357of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: “ ‘(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’” Ex parte Nall, 879 So.2d 541, 548 (Ala.2003) (quoting Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001)).'
“Ex parte Yancey, 8 So.3d 299, 303-04 (Ala.2008).”

Ex parte Jones, 52 So.3d 475, 478-79 (Ala.2010).

“In reviewing a trial court’s ruling on a motion for a summary judgment, we apply the same standard the trial court applied initially in granting or denying the motion. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999).
“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact.’
“742 So.2d at 184.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
86 So. 3d 354, 2011 Ala. LEXIS 199, 2011 WL 6117907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-fielding-1101327-ala-12-9-2011-ala-2011.