On Application for Rehearing.
LYONS, Justice.
The opinion of November 24, 1999, is withdrawn and the following is substituted therefor.
Paul J. Cranman, as executor of the estate of his son Matthew Cranman, deceased, was the plaintiff in a medical-malpractice action. He appealed from summary judgments entered in favor of the defendants David Maxwell, M.D.; Patricia A. Hubbs, M.D.; John Galaznik, M.D.; and Joe Bethany, M.D. (hereinafter sometimes referred to collectively as "the physicians"). The Court of Civil Appeals affirmed, holding that the physicians were entitled to discretionary-function immunity. Cranman v. Maxwell, 792 So.2d 386 (Ala.Civ.App. 1998). We granted Paul Cranman's petition for certiorari review, and we reverse.
I. Facts
Matthew Cranman was a student at the University of Alabama in 1994. On September 12, 1994, he went to the Russell Student Health Center of the University of Alabama ("the student health center"), complaining of swelling and pressure in the area of his left testicle. Dr. Maxwell examined him, diagnosed epididymitis (an inflammation of the sperm-collecting tubes near the testicles), and prescribed antibiotics and sitz baths. Matthew returned on October 11, 1994, complaining of low-back pain. Dr. Galaznik examined him, diagnosed muscle pain, and prescribed medication. On November 7, 1994, Matthew again went to the student health center, reporting that he had a possible prostate infection. Dr. Maxwell saw him and determined that he had a slightly tender mass effect in the left epididymis; however, a testicular examination was negative. Dr. Maxwell prescribed more antibiotics and instructed Matthew to return in two weeks. Matthew returned on November 29, 1994, reporting mild discomfort in his left testicle. Dr. Bethany examined him, noted a slight enlargement of the testicle, changed his medication, and recommended that he consult a urologist in his hometown during the semester break.
Matthew did not visit the student health center again until August 23, 1995. At that time he complained of a stabbing, burning pain in his left flank. Dr. Maxwell examined him, diagnosed left paralumbar pain, and prescribed medication and physical therapy. Two days later, when Matthew reported for physical therapy, he was examined by Dr. Hubbs, who noted that he was tender along the costal margin, in his left side, and in his flank. Dr. Hubbs thought Matthew had suffered a strain of the chest muscles; she prescribed additional medication, recommended that he try heat or ice, and instructed him to return in a week. When Matthew returned six days later, he reported that he was feeling better, and Dr. Hubbs gave him additional medication. On October 11, 1995, Matthew reported to the student health center with back pain and a flareup of his epididymitis. Dr. Hubbs noted that he had the symptoms of a hydrocele and that he had seen a urologist. She examined him, diagnosed recurrent epididymitis and a back strain, prescribed pain and antibiotic medication and back exercises, and instructed him to return in two weeks if he did not improve. On November 9, 1995, Matthew went to the student health center complaining of nausea, vomiting, and diarrhea. Dr. Maxwell examined him, but Matthew reported no back or testicular pain. On November 17, 1995, Matthew returned, with recurring back pain, and reported that he had been under stress and had not slept for a week. Dr. Hubbs examined him and found that he was experiencing shoulder pain and tightness different from the earlier back pain. She diagnosed upper back and neck strain, prescribed heat and medication, and referred him to physical therapy.
In December 1995, Matthew was diagnosed with testicular cancer. Cancerous cells were found in his lungs and behind his kidneys. His left testicle was surgically removed, and he underwent chemotherapy, radiation, and other cancer treatments.
II. Procedural History
In September 1996, Matthew sued Drs. Maxwell, Hubbs, and Galaznik; the student health center; and others. He alleged that the physicians had negligently or wantonly breached the applicable standard of care in treating him, thereby breaching an implied contract to render medical treatment. In their answer, the physicians asserted the defense of immunity because, they claimed, they were engaged in a discretionary function within the scope of their authority as employees of the University of Alabama. They then moved for a summary judgment on the basis of immunity. Matthew then amended his complaint to add Dr. Bethany as a defendant and to dismiss the student health center.
Matthew Cranman died on November 6, 1997. On December 31, 1997, the trial court entered a summary judgment in favor of Drs. Maxwell, Hubbs, and Galaznik, concluding that they were protected from liability by discretionary-function immunity. On January 8, 1998, Paul Cranman, Matthew's father and executor, was substituted as a plaintiff, pursuant to Rule 25(a), Ala.R.Civ.P. On January 20, 1998, the trial court entered a summary judgment in favor of Dr. Bethany, based upon immunity. The trial court certified the summary judgments as final, pursuant to Rule 54(b), Ala.R.Civ.P. Paul Cranman appealed to this Court, which transferred the case to the Court of Civil Appeals, pursuant to § 12-2-7(6), Ala. Code 1975. In affirming the summary judgments, the Court of Civil Appeals stated, in pertinent part:
The Court of Civil Appeals' opinion states that the record does not indicate whether Matthew Cranman's death was caused by cancer, see 792 So.2d at 389, but the petitioner's brief states that Matthew "died from cancer."
"As Matthew did in the trial court, the executor principally argues on appeal that precedents from other states rejecting immunity for state-employed physicians are persuasive and should be followed by Alabama courts. The trial court, while stating that `[Matthew] made a very compelling argument that [the state physicians] should not be entitled to discretionary function immunity because the character of the discretion which they exercised was medical and not governmental,' concluded that `under the current law of the State of Alabama a State-employed physician is entitled to immunity whether he's exercising "medical discretion" or "governmental discretion."' We agree with the trial court that no Alabama opinion has made any distinction, for purposes of tort liability, among the various forms of discretion that may be afforded to public servants in this state. Indeed,
Kassen v. Hatley,
887 S.W.2d 4 (Tex. 1994), one of the authorities upon which the executor principally relies, describes Alabama as a state in which government medical personnel are immune from tort liability
arising from the exercise of discretion in both governmental and medical decisions.
887 S.W.2d at 11 (citing
Smith I [
Smith v. Arnold,
564 So.2d 873 (Ala. 1990]).
". . . .
"In this case, the state physicians were employed to provide health care to the student population at a state university. Their diagnoses of Matthew's condition and their recommendations as to treatment of that condition called for no less `professional judgment and discretion' than those made by the state-employed physicians in
Barnes [v. Dale,
530 So.2d 770 (Ala. 1988)],
Smith I, and
Harper [v. Gremmel,
703 So.2d 346 (Ala. 1997)], or the state-employed trainer in
Lennon [v. Petersen,
624 So.2d 171 (Ala. 1993)], and it follows that they are entitled to the same discretionary function immunity that was afforded to the defendants in those cases. Thus, the trial court correctly entered the summary judgment in favor of the state physicians, and we affirm that judgment."
Cranman v. Maxwell,
792 So.2d at 391-92.
Paul Cranman petitioned this Court for certiorari review of the Court of Civil Appeals' decision. He frames the issue presented as "whether the physicians in the rendition of purely medical treatment to an individual are performing a discretionary act as contemplated by caselaw and are legally entitled to officer-agent immunity under the Constitution for the State of Alabama, Art. I, Section 14." The Court granted his petition and consolidated this case with three other cases for oral argument. All of the cases question the continuing validity of the doctrine of immunity for health-care providers in the State service. SeeWells v. Storey, 792 So.2d 1034 (Ala. 1999); Ex parte Rizk, (reh'g pending); Wimpee v. Stella, (reh'g pending).
Note from the reporter of decisions: On June 30, 2000, the Supreme Court granted the application for rehearing, withdrew the November 24, 1999, opinion, and substituted a new opinion. The November 24, 1999, opinion carried the judgment line "WRIT GRANTED." The opinion substituted on June 30, 2000, was very different; it carried the judgment line "[REHEARING] APPLICATION GRANTED; OPINION OF NOVEMBER 24, 1999, WITHDREW; OPINION SUBSTITUTED; WRIT DENIED."
The substituted Rizk opinion of June 30, 2000, is published at 791 So.2d 911.
Note from the reporter of decisions: On September 1, 2000, the Alabama Supreme Court withdrew its no-opinion affirmance in Wimpee and issued an opinion. The opinion substituted on September 1, 2000, carried that judgment line "[REHEARING] APPLICATION GRANTED; MEMORANDUM OF NOVEMBER 24, 1999, WITHDREW; OPINION SUBSTITUTED; REVERSED AND REMANDED."
The substituted Wimpee opinion of September 1, 2000, is published at 791 So.2d 915.
III. Development of the Doctrine of Immunity
We today reexamine the doctrine of immunity of officers, agents, and employees of the State for torts committed in the course of their performance of their duties.
We do not deal here with the absolute immunity of witnesses, judges, prosecutors, and legislators. In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Supreme Court recognized the absolute immunity of the President of the United States and state and federal legislators and noted the common-law origins of that immunity. Noting that a cabinet official did not enjoy absolute immunity, because of the absence of built-in restraints that are applicable to judges and legislators, the Court wrote:
"[M]ost of the officials who are entitled to absolute immunity from liability for damages are subject to other checks that help to prevent abuses of authority from going unredressed. Legislators are accountable to their constituents, and the judicial process is largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages to prevent unjust results."
472 U.S. at 522 (citation omitted).
We begin our discussion with a review of the doctrine of immunity where the issue arises in the context of the immunity available to the State in an action against the State ("State immunity") as opposed to the immunity available to individual defendants sued for actions taken on behalf of the State ("State-agent immunity"). In Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So.2d 281 (1971), this Court traced the history of State immunity in Alabama, using Copeland and Screws, Governmental Responsibility for Tort in Alabama, 13 Ala. L. Rev. 296 (1961), as a rich source of information. Our first Constitution required the Legislature to direct in what manner and in what courts actions could be brought against the State. Art. 6, § 9, Ala. Const. of 1819. The Legislature obliged in the following year with a statute allowing "any claim against the state" to be instituted by petition to the supreme court where two judges would "form a court for the trial of such suit," with provision for trial by jury on demand. Toulmin, Digest of the Laws of Alabama, tit. 61, ch. 28, §§ 8-10 (1823).
We do not include in this opinion any discussion of actions against State officials for injunctive relief to compel performance of duties imposed by law or the Constitution. SeeAland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), recognizing exceptions to Art. I, § 14, in such instances; see also Williams v. Hank's Ambulance Serv., Inc., 699 So.2d 1230 (Ala. 1997).
In the Constitution of 1865, a change in philosophy first surfaced when the privilege of suing the State was shifted from a matter of right to a matter within the discretion of the Legislature. The 1820 legislation and successor provisions permitting actions against the State remained in effect until their repeal in 1875. The Constitution of 1875 included, for the first time, a provision stating that "the state of Alabama shall never be made defendant in any court of law or equity." Art. I, § 15, Ala. Const. of 1875. Art. I, § 14, Ala. Const. of 1901, contains the same provision.
Art. I, § 15, Ala. Const. of 1865, repeated in Art. I, § 16, Ala. Const. of 1868.
Ala. Acts 1874-75, No. 200, p. 271. See also Ex parte State, 52 Ala. 231 (1875).
In the early years of statehood, this Court allowed a county to enjoy immunity from negligence or nonperformance of its duties except when a statute expressly provided otherwise. A city's liability turned on whether the city was performing a corporate, as opposed to a governmental, function. The aforementioned constitutional prohibition of actions against the State dealt only with the State, not cities and counties. The law applicable to cities and counties was outside the sphere of constitutional regulation. The decisional law underpinning immunity of cities was overturned in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), in face of dissents arguing in favor of deferring to the Legislature for change in the long-settled understanding of municipal liability. 294 Ala. at 600-04, 320 So.2d at 75-79. This Court adopted a similar rule allowing actions against counties, in Lorence v. Hospital Bd. of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), and Cook v. County of St. Clair, 384 So.2d 1 (Ala. 1980).
Copeland Screws at 308.
Id.; see also Ex parte Board of School Comm'rs, 230 Ala. 304, 305, 161 So. 108, 109 (1935), noting that city and county boards of education enjoy immunity based "upon the broad principle of public policy," a policy declared by authorities not referring to § 14, but resting upon "the assumption that nothing in the Constitution stood in the way."
In Hutchinson, supra, this Court addressed whether the State, acting in its proprietary function, was entitled nonetheless to assert its immunity. Answering in the affirmative, the Court spoke as follows:
"The wall of `governmental immunity' is almost invincible, made so by the people through their Constitution as interpreted by this Court. Our cases are clear that the operation of a hospital is a `governmental function,' but even if we should classify the operation of University Hospital as being a `business function,' nevertheless, the State could not be sued."
288 Ala. at 24,
256 So.2d at 284. Today we must decide whether agents of the State sued in their individual capacity are entitled under certain circumstances to similarly sweeping immunity, regardless of how we would classify the activity in which they are engaged.
No counterpart to Art. I, § 14, Ala. Const. of 1901, which declares the State immune from suit, appears in the Constitution of the United States. Also, the United States Constitution has no counterpart to Art. I, § 13, guaranteeing every person a remedy by due process of law for "any injury done . . . in his lands, goods, person, or reputation." The immunity of the United States Government is based upon the decisional law of the federal courts, uninfluenced by the presence of provisions comparable to §§ 13 and 14 of the Alabama Constitution of 1901.
"The explanation for the initial acceptance in the United States of the feudal and monarchistic doctrine of sovereign immunity is obscure. In 1821, in
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411, 412, Chief Justice Marshall declared that no suit could be commenced or prosecuted against the United States without its consent. On the basis of this and other early cases the rule of tort immunity became firmly established on the procedural ground that the Federal Government could not be sued without its consent. When justifications were offered, they were consistent with the form in which the rule was stated. The explanation most commonly quoted is that of Mr. Justice Holmes, in
Kawananakoa v. Polyblank, (1907)
205 U.S. 349, 353: `A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.' A separate idea of substantive immunity, as distinct from the denial of the right to sue, also appeared in the federal decisions, and in
Gibbons v. United States, (1868) 75 U.S. (8 Wall.) 269, it was held that the Government was immune from all liability in tort."
Restatement (Second) of Torts § 895A cmt. a (1977). Over time, the United States Congress, unfettered by constitutional restraints on lawsuits against the United States and not subject to any constitutional guaranty that a person would have the right to a civil action to redress an injury, enacted statutes that allowed the United States Government to be sued in certain circumstances. For example, in 1855 Congress established the Court of Claims to hear contract cases; in 1887, the Tucker Act waived immunity from suit and conferred jurisdiction upon the Court of Claims and the United States district courts to hear claims against the
United States relating to the "taking" of property; in 1946, the Federal Tort Claims Act allowed actions against the United States for money damages for torts committed by Government employees and eliminated personal liability of those employees.
Because the source of the immunity from suit enjoyed by the State of Alabama differs from the source of immunity of the United States Government in that the State's immunity is constitutionally based, neither the Alabama Legislature nor this Court has the power to waive the State's immunity from suit. Nor can the Legislature or this Court eliminate the right to a remedy by a civil action against an individual unless our constitution authorizes it to do so.
Art. I, § 14, Ala. Const. of 1901.
The only statutory basis presently existing for making compensation available to citizens of the State who have suffered injuries caused by the State or its agencies is found in §§ 41-9-60 to -74, Ala. Code 1975, wherein the Legislature established the Board of Adjustment, which functions outside the judicial system. The Legislature, in those Code sections, recognized a moral obligation where there is no legal obligation.Hawkins v. State Board of Adjustment, 242 Ala. 547, 7 So.2d 775 (1942). It extends a measure of compensation or relief when the rule of sovereign immunity exempts the State and its respective agencies from suit. State ex rel. McQueen v. Brandon, 244 Ala. 62, 12 So.2d 319 (1943).
Copeland and Screws, in their 1961 article, supra, refer to State-agent immunity only in passing, when dealing with the separate concept of governmental immunity. They conclude:
Copeland Screws at 307.
"Sovereign immunity not only protects state agencies and corporations, but officers, agents or employees in their
official capacity where the suits [involve] a state obligation. The problem of agency here is one of incongruity — the individual is not liable while acting for the state if the suit directly affects the state treasury, but the agent is liable for torts committed within his authority and cannot escape personal liability through the immunity shield. Since the state `can do no wrong,' any tort committed by an employee is without authority and the employee cannot set up a defense to escape liability that he was acting within his authority."
Copeland Screws at 307 (emphasis in original) (footnotes omitted).
In England, the doctrine that "the king can do no wrong" came to be accompanied by the concept that his ministers were personally responsible when they acted illegally. Under their authority to create a common law, courts have struggled over the years to develop a meaningful compromise between the two extremes. Restatement (Second) of Torts § 895D, "Public Officers" (1974), codifies this compromise, with its dichotomy between discretionary functions, in regard to which the public officer or employee is immune, and ministerial functions, in regard to which the public officer or employee is personally liable.
Restatement (Second) of Torts § 895D, "Public Officers," cmt. a (1974).
In Mitchell v. Forsyth, 472 U.S. 511, 521 (1985), the Supreme Court recognized the footings of the doctrine of immunity in considerations of the separation-of-powers doctrine. Art. III, § 43, Ala. Const. of 1901, requires that each of the three separate coequal branches confine its activities to its respective sphere. While we have not heretofore considered the separation-of-powers doctrine as part of the equation in determining issues of liability of State agents, other jurisdictions have traced the doctrine of State-agent immunity back to the provisions of their respective constitutions mandating separation of powers. See, e.g., Adams v. City of Tenakee Springs, 963 P.2d 1047 (Alaska 1998); Sutton v. Golden Gate Bridge, Highway Transp. Dist., 68 Cal.App.4th 1149, 81 Cal.Rptr.2d 155 (Dist. Ct. App. 1998);Department of Health Rehabilitative Servs. v. B.J.M., 656 So.2d 906 (Fla. 1995); Hiers v. City of Barwick, 262 Ga. 129, 414 S.E.2d 647 (1992), superseded by constitutional amendment, as stated in City of Thomaston v. Bridges, 264 Ga. 4, 439 S.E.2d 906 (1994); Ransom v. City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987); Rumbold v. Town of Bureau, 221 Ill. App.3d 222, 581 N.E.2d 809, 163 Ill. Dec. 655 (1991); Wade v. Norfolk Western Ry., 694 N.E.2d 298 (Ind.App. 1998); Goodman v. City of LeClaire, 587 N.W.2d 232 (Iowa 1998); Hardy v. Bowie, 719 So.2d 1158 (La.App. 1998); Christensen v. Mower County, 587 N.W.2d 305 (Minn. Ct. App. 1998); Mahan v. New Hampshire Dep't of Admin. Servs., 141 N.H. 747, 693 A.2d 79 (1997); Broadway 67th St. Corp. v. City of New York, 116 Misc.2d 217, 455 N.Y.S.2d 347 (Sup.Ct. 1982),order rev'd, 100 A.D.2d 478, 475 N.Y.S.2d 1 (1984); Moody v. Lane County, 36 Or. App. 231, 584 P.2d 335 (1978); City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex. 1995); Hudson v. Town of East Montpelier, 161 Vt. 168, 638 A.2d 561 (1993).
Soon after the Constitution of 1901 was adopted, this Court, in Elmore v. Fields, 153 Ala. 345, 45 So. 66 (1907), recognized the right of a citizen to sue a State employee for a tort committed in the line of duty. Elmore was the first Alabama case ever to deal with the issue of immunity for State agents sued in their individual capacity for the commission of a tort. The Court recognized no immunity, citing State v. Hill, 54 Ala. 67 (1875), wherein the Court had held that the State could not be liable under the doctrine of respondeat superior for the torts of its agents. The Court in Elmore also cited United States v. Lee, 106 U.S. 196 (1882), wherein the Supreme Court had quoted from Chief Justice Marshall's opinion in Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 842-43 (1824), as follows:
"`[B]ut if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit.'"
106 U.S. at 213. Thus, because the State can do no wrong, its agents, when committing a tort, are not acting within their authority and, therefore, they do not act on behalf of the State.
Elmore, 153 Ala. at 351,
45 So. at 67.
Section 13, with its guaranty of a right to a remedy, was applied in J.B. McCrary Co. v. Phillips, 222 Ala. 117, 130 So. 805 (1930), where a contractor argued that a statute granting Jefferson County the authority to build a sewer system also granted immunity to the county and that the county's immunity shielded it from liability. In rejecting this argument, this Court stated that such a construction of the statute would conflict with § 13 of the Constitution.
The Constitution and cases construing it require that we not ignore § 13 in order to protect State agents from suit. However, the vulnerability of State agents to suit, if not constrained, could lead to excessive judicial interference in the affairs of coequal branches of government, contrary to § 43. In Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930), a divided Court (4-3) allowed an action in tort to proceed against a State agent. The dissenting opinion of Justice Thomas invoked as an extreme example the problems that would be posed if the majority's holding led to tort actions against the Governor. 222 Ala. at 303, 132 So. at 15.
We cannot ignore precedents such as Elmore, J.B. McCrary Co., and Finnell, clearly recognizing an open door to lawsuits against State agents and written by Justices of this Court who lived, worked, and wrote in an era much closer to the drafting of the Constitution of 1901 than we do. Yet, at the same time, we cannot ignore the strong policy against judicial interference in the affairs of State government as articulated in § 14 and mandated by § 43. Although § 14 is, by its terms, restricted to prohibiting lawsuits against the State, we cannot disregard its impact upon our obligation to observe the constitutional separation of powers. However, we cannot give excessive deference to the authority of the legislative branch, grounded in the separation-of-powers doctrine stated in § 43, to eliminate entirely personal liability of State agents. The authority to exercise the judicial power in § 6.01 of Amendment No. 328 appears after Art. I, § 36. Section 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it. We must, as far as possible, construe §§ 13, 14, 36, and 43 and § 6.01 of Amendment No. 328 "as a whole and in the light of [the] entire instrument and to harmonize with other provisions." State Docks Comm'n v. State ex rel. Cummings, 227 Ala. 414, 417, 150 So. 345, 346 (1933).
"That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare thateverything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate." Art. I, § 36, Ala. Const. of 1901 (emphasis added).
In light of the foregoing constitutional provisions, we conclude that while we have the constitutional power to decide cases — thereby applying the law in cases that come before us — if the authority conferred upon this Court pursuant to the Judicial Article (Article VI) conflicts with the provisions of § 13, we must construe § 13 as dominant, subject to our obligation to observe the separation of powers established by § 43. In applying the doctrine of separation of powers, we must recognize § 14 as an expression of a strong public policy against the intrusion of the judiciary into the management of the State while, at the same time, acknowledging that it speaks only to a prohibition of lawsuits against the State and does not mention lawsuits against individuals. For this reason, the express provisions of § 13 establishing the right to a remedy through a lawsuit against an individual must, as to the issue before us, stand above the implications from § 14 in the hierarchy within the declaration of rights. In the final analysis, we cannot invoke merely the authority to declare "sound public policy" through caselaw in order to find State agents immune from suit; in order to declare them immune, we must find the immunity in constitutional provisions. This constitutional backdrop enables us to articulate public policy through caselaw in this troublesome area, using constitutional principles, and not simply personal notions of good government, as our compass.
Against this backdrop, we turn to the more recent cases dealing with State-agent immunity. Seventy-five years after this Court first recognized inElmore the open door to lawsuits against State agents, this Court decided DeStafney v. University of Alabama, 413 So.2d 391 (Ala. 1981). In DeStafney, after recognizing that a claim alleging personal injury caused by the alleged negligent conduct of a State employee, even when that conduct is committed in the line and scope of her employment, is not within the ambit of the constitutional prohibition against lawsuits against the State as expressed in § 14, this Court adopted a rule of qualified immunity derived from Restatement (Second) of Torts § 895D. The adoption of that rule partially closed the door that had been opened in Elmore.
State-agent immunity is unavailable where the governmental agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law. See Wright v. Wynn, 682 So.2d 1 (Ala. 1996); Barnes v. Dale, 530 So.2d 770 (Ala. 1988); Rigby v. Auburn Univ., 448 So.2d 345 (Ala. 1984); DeStafney, 413 So.2d at 395; Unzicker v. State, 346 So.2d 931 (Ala. 1977).
DeStafney refers to § 14 as a source of qualified immunity. 413 So.2d at 392. See also Ex parte Kelley, 739 So.2d 1095 (Ala. 1999); Pack v. Blankenship, 612 So.2d 399, 403 (Ala. 1992).
Over the years since this Court decided DeStafney, a case in which an injured child was allowed to sue an employee of a daycare center operated by the University of Alabama, based on the ministerial nature of the employee's duties, the doctrine of State-agent immunity has been applied in a variety of settings. A review of the cases in their factual context illuminates the line the courts of this State have drawn between conduct involved in planning or decision-making in the administration of government and the conduct of those required to carry out the orders of others or to administer the law with little choice as to when, where, how, or under what circumstances their acts are to be done. See the Appendix to this opinion for a compilation of cases from this Court and the Court of Civil Appeals applying the doctrine of State-agent immunity (792 So.2d at 417).
Restatement (Second) of Torts § 895D, "Public Officers," cmt. b (1974).
Id., cmt. g.
The most difficult applications of the rule derived from theRestatement come in instances where the discretion being exercised has little, if any, bearing on the administration of an agency of government or the execution of duties imposed by law. We cannot insulate State employees acting outside that zone, without disregarding § 13. In Taylor v. Shoemaker, 605 So.2d 828 (Ala. 1992), this Court again dealt with the question of qualified immunity and noted the impact of DeStafney on earlier cases:
"The plaintiffs recognize that § 14 of the Constitution of Alabama of 1901 (`the State of Alabama shall never be made a defendant in any court of law or equity') extends immunity to state officers and employees acting within their official capacities, but contend that a tortious act by a state officer or employee removes such an officer or employee from this immunity. They cite
Finnell v. Pitts, 222 Ala. 290,
132 So. 2 (1930). By a four-to-three vote, this Court held in that case:
"`We also think that this suit does not violate the constitutional prohibition against suing the state. For though the state cannot be sued (section 14, Constitution), its immunity from suit does not relieve the officers of the state from their responsibility
for an illegal trespass or tort on the rights of an individual, even though they act pursuant to authority attempted to be conferred by the state. For when the state officers take private property though they apply it to a public use, a tort has been committed by them. Private property rights have been thereby unlawfully disturbed by them. We believe that the rule is universal that an agent is not excused from personal liability for a tort which he commits for and in the name of his principal, whether the principal is liable to suit or not.
"`The decisions of this court and the authorities generally apply that principle to torts committed by state officers in the name of the state and on account of the state's public affairs. An individual cannot justify a tort on a contention that it is for the state, if the state had no such right. If the state had the right, then its officers, acting by its authority, were justified. The officers cannot be justified upon a mistaken notion of state authority. An inadvertent tortfeasor is such, though he may not be liable to the amount of damages as a willful tortfeasor would be. The question now being discussed is not the extent of liability, but the fact of liability vel non. If in the promotion of the state's business its officers without authority of law apply private property to the state's enterprises, they are guilty of the same nature of wrong, as if they were acting as agents of a private corporation. The wrong is that of the officers personally as well as that of their principal. The officers are sued, not because the state has committed a wrong, but because they personally, though acting as officers, have done so. When a person commits a tort, it is wholly immaterial upon the question of his liability, whether he was acting officially or personally.'
"222 Ala. at 292-93, 132 So. at 4-5. (Citations omitted.)
"The holding by a majority of this Court in
Finnell v. Pitts should be read in light of later cases decided by this Court involving the immunity of public officers. The law of this State is that there is immunity when the state officer or employee has not exceeded his or her authority, but has merely negligently performed a statutory duty while acting pursuant to statutory authority.
Gill v. Sewell,
356 So.2d 1196 (Ala. 1978). Likewise, consistent with
Restatement (Second) of Torts, § 895D, "Public Officers" (1974), there is immunity when the state officer or employee commits a tort while engaged in the exercise of a discretionary function.
Sellers v. Thompson,
452 So.2d 460 (Ala. 1984). Consequently, any statements made in
Finnell v. Pitts, supra, and
Elmore v. Fields, 153 Ala. 345,
45 So. 66 (1907) (the only Alabama authority on which the majority of this Court relied in
Finnell), regarding the application of the qualified immunity defense should be considered in light of these later holdings."
605 So.2d at 829-30. This Court in Taylor noted that the sweep of Finnell had been restricted by DeStafney.
Our more recent cases dealing with the question when conduct constitutes the performance of a discretionary function as opposed to the performance of a ministerial function have used language that suggests a requirement that the actor be involved in "planning tasks" and "policy-level decision-making" in order to qualify for immunity. See Defoor v. Evesque, 694 So.2d 1302, 1305 (Ala. 1997), followed in Town of Loxley v. Coleman, 720 So.2d 907 (Ala. 1998). Recently, the Court of Civil Appeals referred to conduct that falls under the heading of "ministerial functions" as "characterized by operational tasks and minor decision-making." Kassaw v. Minor, 717 So.2d 382, 385 (Ala.Civ.App. 1998). This language in these recent cases could be read as disallowing State-agent immunity in instances where the actor, even though he may be making a complex decision beyond the range of the lay person, is not involved at the time in decision-making that directly relates to the exercise of a governmental-policy judgment.
For an illustration of the concept of protecting "only governmental actions and decisions based on considerations of public policy," as that concept applies to the standards for liability under the Federal Tort Claims Act, see Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). Because all federal employees covered by the Federal Tort Claims Act are immune, the question whether the employee's action or decision is the kind of judgment "that the discretionary function exception was designed to shield" is asked for the purpose of determining the extent of the liability of the United States.
Under the most elementary elaboration of the DeStafney formulation, conduct related to policy and planning and involving the exercise of judgment carries immunity, while ministerial acts carrying out the commands of decision-makers do not. However, at least two primary problems arise in the application of this test drawn from the American Law Institute's appreciation of prevailing law from around the country.
First, as is the case with liability under the Federal Tort Claims Act, as discussed in Berkovitz v. United States, see note 17, cases from other jurisdictions often draw the line in the context of statutory remedies under which all agents enjoy immunity and therefore the point of demarcation relates only to the extent to which the public coffers will be open. These decisions arising in a context where all agents are immune do not have to reckon with the effect upon the rendition of governmental services if agents are inclined to indecision rather than risk personal liability. However, because we are bound by the aforementioned constitutional provisions, we cannot allow such extraconstitutional considerations to control the outcome.
Second, as long as the agent has not disobeyed clear instructions, almost any challenged conduct can be reduced to the exercise of some degree of judgment or discretion. However, judicial deference to all conduct in which judgment or discretion is employed would exalt the immunity of § 14 over the right to a remedy preserved by § 13. 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 and the truck driver is not.
Ex parte Davis, 721 So.2d 685 (Ala. 1998).
Town of Loxley v. Coleman, 720 So.2d 907 (Ala. 1998).
We cannot, in blind obedience to the doctrine of stare decisis, continue to accept an expansive application of caselaw characterizing as a discretionary function conduct remote from the execution of governmental policy; to do so would perpetuate an erroneous construction of the Constitution. Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 42 (Ala. 1998) (Lyons, J., concurring specially) (citing Gwin, White Prince, Inc. v. Henneford, 305 U.S. 434, 454-55 (1939) (Black, J., dissenting)). The time has come to face the necessity of defining "injury," as that word is used in § 13, in lawsuits against State employees alleging torts committed in the line of duty, in a manner that neither violates § 13 nor prefers § 14 or § 6.01 of the Judicial Article over § 13. We decline to label all discretionary acts by an agent of the State, or all acts by such an agent involving skill or judgment, as "immune" simply because the State has empowered the agent to act. Such an expansive view of the power of the State to act with immunity for its agents would be inconsistent with the rights secured by § 13.
IV. Restatement of the Rule Governing State-agent Immunity
We therefore restate the rule governing State-agent immunity:
A State agent
shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
(1) formulating plans, policies, or designs; or
(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
(a) making administrative adjudications;
(b) allocating resources;
(c) negotiating contracts;
(d) hiring, firing, transferring, assigning, or supervising personnel; or
(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; or
(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.
We today only modify Elmore and cases relying upon it so as to preserve the proper balance between §§ 13, 14, 43, and § 6.01 of the Judicial Article. Our decision today strikes a balance between constitutional provisions — between the right to a remedy guaranteed by § 13 and the immunity of the State provided for by § 14; this decision is informed by the wisdom of the doctrine of separation of powers, as considered in light of the presence of § 14, and this decision should prevent Justice Thomas's point made by exaggeration in his dissenting opinion in Finnell from becoming prophecy. The Legislature, should it see fit to do so, can create a mechanism for providing State employees with liability insurance or it can propose a constitutional amendment that would authorize statutory procedures to make the State amenable to lawsuits for the torts of its agents while protecting State employees from lawsuits.
V. Application of the Restated Rule of State-agent Immunity to the Physicians
We now return to the question presented by this case: Whether physicians employed by the University of Alabama to work at the student health center, a facility funded by the State for the purpose of providing readily accessible medical care to students, are entitled to State-agent immunity. The physicians argue that decision-making exercised by a physician in treating a patient should be entitled to immunity because, they say, such decision-making inherently involves the utmost discretion, while the plaintiff Cranman argues that a physician's treatment of a patient is too remote from governmental policy to be entitled to immunity. In response, the physicians argue that governmental policy need not be material to the physician's decision-making because, they say, the business of government is whatever government chooses to do.
We determine the immunity issue pursuant to today's restatement of the rule governing State-agent immunity in light of the constitutional provisions that guide our determination. The conduct of the physicians, in their treatment of Matthew Cranman, does not fit within any category of conduct recognized by the restated rule as immune. The physicians are therefore not entitled to State-agent immunity. Thus, we reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings consistent with this opinion.
See Part IV, supra, 792 So.2d at 405.
APPLICATION GRANTED; OPINION OF NOVEMBER 24, 1999, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
Hooper, C.J., and Houston, J., concur.
Johnstone, J., concurs specially.
Cook, J., concurs in the judgment and concurs in part in the opinion.
Brown, J., concurs in the judgment.
Maddox and See, JJ., dissent.
England, J., recuses himself.