Ex parte Gilnita Jones et al. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Angela S. Levert, as personal representative of the estate of M.S., deceased v. Tyshelle Wilson et al.)

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REL: 06/25/2010 N o t i c e : This o p i n i o n i s s u b j e c t t o formal r e v i s i o n before p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e Courts, 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010 1090762 Ex p a r t e G i l n i t a Jones e t a l . PETITION FOR WRIT OF MANDAMUS (In r e : Angela S. L e v e r t , as p e r s o n a l r e p r e s e n t a t i v e o f t h e e s t a t e o f M.S., d e c e a s e d v. Tyshelle Wilson et a l . ) 1090781 Ex p a r t e T y s h e l l e W i l s o n PETITION FOR (In re: A n g e l a S. Levert, WRIT OF as MANDAMUS personal e s t a t e o f M.S., representative of the deceased v. Tyshelle Wilson et (Proceedings LYONS, from the Jefferson C i r c u i t Court, case no. 1090762, Gilnita Henderson, E l i z a b e t h K a t i e Walter, Court Circuit for Court the b a s i s of brought a to writ enter against Tyshelle directing the judgment i n her of the E u b a n k s ( c a s e no. and directing of this the S. in their Walter; 1090762). We no. 1 0 907 81 , of mandamus case for a writ Court we Facts and to enter grant deny Procedural a summary immunity i n the p e t i t i o n the petition deny the p e t i t i o n 2 action In Court We on personal 1090781). I. favor as the b a s i s of State-agent action. Jefferson Levert, M.S. Circuit Pate petition i n a wrongful-death Angela estate f a v o r on Henderson, no. immunity Cynthia Tracy Eubanks summary j u d g m e n t by Jefferson Jones, and mandamus petitions same w r o n g f u l - d e a t h (case a them Wilson Jones, of State-agent representative the CV-08-901738) Justice. In this al.) History as t o as to as to Wilson 1 0 9 0 7 6 2 ; 1090781 At the time action, Wilson of the events was a s o c i a l w o r k e r D e p a r t m e n t o f Human R e s o u r c e s at wrongful-death with the Jefferson ("DHR"). normal with responding business scheduled received hours. on-call b y DHR minor child, months old. to telephone worker On who child DHR worker made t o DHR 5, 2 0 0 7 , was abuse Wilson or neglect at that Levert, the child's approximately calls duties 9:30 p.m. time a call against approximately grandmother, Jones, after was t h e r e s p o n s i b l e f o ri n v e s t i g a t i n g alleging M.S., October County Among W i l s o n ' s t h a t t i m e was t o a c t p e r i o d i c a l l y a s a n o n - c a l l charged at underlying this another telephoned DHR worker, a 23 DHR was a s s i g n e d t o "shadow" Wilson w h i l e Wilson i n v e s t i g a t e d L e v e r t ' s allegations. training According exercise responsibility a going telephone. a worker. initial another call and Jones telephone involving Levert a call bruising 3 with that t h a t as received on a Levert Jones i s a assumes testified because Wilson teenager described worker investigating spoke stated assignment that Jones into t o M.S.'s home, J o n e s Wilson shadow before s h e h a d no i n p u t Levert's evening. f o r a worker as an o n - c a l l shadow w o r k e r Before t o DHR, call. on t h e returned was b u s y with on the same M.S.'s face and 1 0 9 0 7 6 2 ; 1090781 reported that a day-care worker who saw M.S. regularly reported t o h e r t h a t he h a d b e e n w a l k i n g w i t h a l i m p . reported t o Jones told her that that M.S.'s she i n t e n d e d mother, to take L.S. ( " t h e M.S. Levert mother"), to the doctor, but L e v e r t s a i d t h a t s h e d i d n o t b e l i e v e t h a t he h a d b e e n t a k e n t o the doctor. Wilson Deborah spoke w i t h t h e o n - c a l l K e y , who advised t h a t M.S. h a d b e e n t a k e n went t o t h e house, mother's couch; they boyfriend, Nakia and told bicycle, Jones then Wilson found Wilson M.S. McConico. paperwork traveled M.S. and Jones on O c t o b e r generated to and c o n f i r m and Jones that of the was a s l e e p on t h e and around h i s eye. the mother's taken 4 place then (thep r e c e d i n g returned where the medical Jones d i d n o t accompany W i l s o n had f a l l e n to the hospital by t h e h o s p i t a l and t h e mother M.S. visit day), off of The his w h e r e he h a d and t h a t t h e was a t t h e h o u s e . t o the mother's p a p e r w o r k was l o c a t e d a n d g i v e n on h e r s e c o n d 4 then i n the care t h a t M.S. h a d b e e n s e e n b y a d o c t o r . t h a t he h a d b e e n a doctor Wilson to the doctor. where employment t o v e r i f y seen h e r t o go t o t h e h o u s e t h e r e were b r u i s e s on h i s f o r e h e a d Wilson mother supervisor for the evening, visit house, to Wilson. t o M.S.'s 1 0 9 0 7 6 2 ; 1090781 house. Wilson and Wilson took t h e paperwork and r e t u r n e d telephoned Key, t h e o n - c a l l s u p e r v i s o r reported to her including the fact indicated that that Wilson completed, that information for the evening, she had the h o s p i t a l physician his injuries a bicycle. investigation, the to her office. advised s h e was and t h a t were consistent gathered, who with saw M.S. a fall Key t h a t t h e i n v e s t i g a t i o n had been preparing a written she would p l a c e report the report, t h e DHR intake intake supervisor written reports supervisor's at that time. of both i n v e s t i g a t i o n of the c a l l she placed morning 7:30 hours a.m. arrival that Wilson was intake and departure testified case. reports of October DHR i n v o l v i n g t h e teenager, and t h a t i n Eubanks's 6 before box during t h e DHR and b u i l d i n g from the b u i l d i n g . saw W i l s o n ' s on O c t o b e r the early opened a t show Wilson's However, Eubanks on M.S. involvement i n M.S.'s f u r t h e r a b o u t M.S. u n t i l s h e 2 1 , 2007 , t h a t 5 office logs report h a d no f u r t h e r She d i d n o t h e a r a n y t h i n g informed was t h e says t h a t she p r e p a r e d logs she never thereafter Wilson Eubanks report, t h e i n v e s t i g a t i o n o f M.S.'s c a s e a n d the both mailbox. of the together w i t h t h e h o s p i t a l - d i s c h a r g e paperwork and t h e d o c t o r ' s in from he h a d d i e d on that 1 0 9 0 7 62; date. 1090781 I t i s undisputed that Wilson's t r i g g e r e d assignment of the c a l l more detailed thereafter, neglect the worker on-call t h e case abuse. o r CA/N w o r k e r after Wilson's worker. Levert's to to investigate of the alleged i n t a k e worker immediately of call have a t o DHR a n d , child-abuse-and- more fully Levert's I t i s also undisputed was a s s i g n e d initial After should t o an i n t a k e w o r k e r t o o b t a i n surrounding assignment ("CA/N") allegations no facts report t o M.S.'s that case c o n t a c t w i t h t h e f a m i l y as M.S.'s death, Eubanks assigned H e n d e r s o n , an i n t a k e w o r k e r i n J e f f e r s o n C o u n t y , t o u n d e r t a k e the i n t a k e process a CA/N worker c o n c e r n i n g M.S.'s c a s e a n d a s s i g n e d i n Jefferson County, to undertake Walter, t h e CA/N investigation. On May 30, 2008, Levert sued Wilson, Jones, W a l t e r , E u b a n k s , a n d n u m e r o u s o t h e r DHR w o r k e r s . e a c h DHR w o r k e r had negligently accordance i n her individual failed w i t h DHR's Levert capacity, alleging to perform rules 1 Henderson, her mandatory and r e g u l a t i o n s , sued t h a t she duties i n as w e l l as t h e T h e o t h e r DHR w o r k e r s L e v e r t s u e d w e r e J a n i c e K i n g , T o n i Dollar, Angela Lacy McClintock, Catherine Denard, Terry B e a s l e y , R e n e c i a Swoopes, and D e b o r a h K e y . The t r i a l c o u r t e n t e r e d summary j u d g m e n t s i n t h e i r f a v o r ; L e v e r t has not appealed from those judgments. 1 6 1090762; laws 1090781 of the S t a t e . worker had acted faith, willfully, beyond her interpretation Expert inflicted during injuries c a p i t a l murder authority, under that to the October i n connection contended with and t h a t case after that Henderson M.S.'s investigations. investigation uncovered that o f an i n t a k e case M.S. died 4 incident M.S.'s DHR the facts she " d i d Eubanks worker M.S.'s from death. injuries i n v e s t i g a t e d by t h a t W i l s o n and Jones Levert that would McConico, i t i nto not see [ t h e to a t o M.S.'s with 7 to the complete or timely that should who was r e p o r t e d who h a d a l s o b e e n p r e v i o u s l y a b u s e , was a l o n e timely assigned contends have, report]." t o make who w e r e further conducted nor turned failed failed with death. a n d a CA/N w o r k e r and W a l t e r , death, drug user and drug d e a l e r child DHR mistaken McConico has been a r r e s t e d and charged who h a s s t a t e d also each a causing contended i n the t r i a l court assignment with or c o m p l e t e d an i n v e s t i g a t o r y r e p o r t Eubanks, that t h e e v e n i n g o f O c t o b e r 20-21 and n o t from any W i l s o n and J o n e s . Levert alleged m a l i c i o u s l y , f r a u d u l e n t l y , i n bad indicates relating neither also of the law, proximately testimony Levert The c o m p l a i n t any have, t o be a charged M . S . f o r 12 o r m o r e h o u r s a 1090762; day 1090781 and t h a t cocaine, Jones, and McConico ecstacy, Henderson, contended Wilson, on t h e b a s i s t h a t , by t h e i r Jones, State-agent immunity they 2010, t h e t r i a l judgment, and they court arguing that of State-agent they a l l filed were Court Levert d e v i a t i o n s f r o m DHR policy, and Eubanks may h a v e o t h e r w i s e denied their waived h a d . On motions any January f o r a summary of Review has s t a t e d : "'"While the general rule i s that the d e n i a l o f a m o t i o n f o r summary j u d g m e n t i s not r e v i e w a b l e , t h e e x c e p t i o n i s t h a t t h e d e n i a l o f a m o t i o n g r o u n d e d on a c l a i m o f immunity i s r e v i e w a b l e by p e t i t i o n f o r w r i t o f mandamus. E x p a r t e P u r v i s , 689 S o . 2 d 794 ( A l a . 1 9 9 6 ) .... "'"Summary judgment i s appropriate o n l y when ' t h e r e i s no g e n u i n e i s s u e a s t o a n y m a t e r i a l f a c t a n d ... t h e m o v i n g p a r t y i s e n t i t l e d t o a j u d g m e n t as a m a t t e r o f law.' Rule 5 6 ( c ) ( 3 ) , A l a . R. C i v . P., Y o u n g v . L a Q u i n t a I n n s , I n c . , 682 S o . 2 d 402 ( A l a . 1996). A court considering a m o t i o n f o r summary j u d g m e n t w i l l v i e w t h e r e c o r d i n t h e l i g h t most f a v o r a b l e t o t h e nonmoving p a r t y , Hurst v. Alabama Power 8 immune immunity. Walter, Standard to drugs. p e t i t i o n e d f o r w r i t s o f mandamus. II. "This and o t h e r addicted and Eubanks willful Henderson, were Walter, f o r a summary j u d g m e n t from l i a b i l i t y 26, t h e mother heroin, marijuana, Wilson, motions both 1090762; 1090781 Co., 675 So. 2d 397 ( A l a . 1 9 9 6 ) , Fuqua v. Ingersoll-Rand Co., 591 So. 2d 486 (Ala. 1991) ; w i l l a c c o r d t h e n o n m o v i n g p a r t y a l l reasonable favorable inferences from the e v i d e n c e , F u q u a , s u p r a , A l d r i d g e v. V a l l e y S t e e l C o n s t r . , I n c . , 603 So. 2d 981 (Ala. 1992) ; a n d will resolve a l l reasonable doubts against the moving p a r t y , Hurst, supra, Ex p a r t e B r i s l i n , 719 So. 2d 185 (Ala. 1998). "'"An appellate court reviewing a r u l i n g on a m o t i o n f o r s u m m a r y j u d g m e n t w i l l , de n o v o , a p p l y t h e s e same s t a n d a r d s applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court w i l l consider only that f a c t u a l m a t e r i a l a v a i l a b l e of r e c o r d to the trial court for its consideration in deciding the motion. Dynasty Corp. v. A l p h a R e s i n s C o r p . , 577 So. 2d 1278 (Ala. 1 9 9 1 ) , B o l a n d v. F o r t R u c k e r N a t ' l Bank, 599 So. 2d 595 ( A l a . 1992 ) , Rowe v . I s b e l l , 599 So. 2d 35 ( A l a . 1 9 9 2 ) . " ' "Ex p a r t e T u r n e r , 840 So. 2d 1 3 2 , 135 ( A l a . 2002 ) ( q u o t i n g Ex p a r t e R i z k , 791 So. 2d 9 1 1 , 9 1 2 - 1 3 ( A l a . 2000)). A w r i t o f mandamus i s an extraordinary remedy available only when the petitioner can d e m o n s t r a t e : '"(1) a c l e a r l e g a l r i g h t t o t h e order s o u g h t ; (2) an i m p e r a t i v e d u t y u p o n t h e r e s p o n d e n t t o p e r f o r m , a c c o m p a n i e d b y a r e f u s a l t o do s o ; (3) t h e l a c k o f a n o t h e r a d e q u a t e remedy; and (4) the properly invoked j u r i s d i c t i o n of the c o u r t . " ' Ex p a r t e N a l l , 879 So. 2d 5 4 1 , 543 ( A l a . 2 0 0 3 ) ( q u o t i n g Ex p a r t e BOC Group, Inc., 823 So. 2d 1270 , 1272 (Ala. 2001))." Ex parte Yancey, 8 So. 3d 299, III. 303-04 Analysis 9 (Ala. 2008). 1 0 9 0 7 6 2 ; 1090781 " I n Ex p a r t e C r a n m a n , 7 92 S o . 2 d 392 ( A l a . 2000), a p l u r a l i t y of t h i s Court r e s t a t e d the t e s t f o r d e t e r m i n i n g when a S t a t e e m p l o y e e i s e n t i t l e d t o State-agent immunity: "'A S t a t e a g e n t s h a l l b e immune f r o m civil liability i n h i s or her personal c a p a c i t y when t h e c o n d u c t made t h e b a s i s o f the c l a i m a g a i n s t t h e agent i s b a s e d upon the agent's "'(1) f o r m u l a t i n g designs; or plans, policies, or "'(2) e x e r c i s i n g h i s or h e r judgment i n the a d m i n i s t r a t i o n of a department or agency of government, i n c l u d i n g , but not l i m i t e d t o , examples such a s : "'(a) making adjudications; administrative "'(b) allocating resources; "'(c) negotiating contracts; "'(d) hiring, firing, transferring, assigning, or supervising personnel; or " ' ( 3 ) d i s c h a r g i n g d u t i e s i m p o s e d on a department o r agency by s t a t u t e , r u l e , or r e g u l a t i o n , i n s o f a r as t h e s t a t u t e , r u l e , or r e g u l a t i o n p r e s c r i b e s t h e manner f o r p e r f o r m i n g t h e d u t i e s and t h e State agent performs the duties i n that manner; or "'(4) exercising judgment i n the enforcement of the c r i m i n a l laws of the State, including, but not l i m i t e d t o , law-enforcement officers' arresting or attempting to arrest persons; or 10 1 0 9 0 7 6 2 ; 1090781 "'(5) exercising judgment i n the discharge of duties imposed by s t a t u t e , r u l e , or r e g u l a t i o n i n r e l e a s i n g p r i s o n e r s , c o u n s e l i n g or r e l e a s i n g persons of unsound mind, o r e d u c a t i n g students. "'Notwithstanding anything to the contrary i n the foregoing statement of the r u l e , a S t a t e a g e n t s h a l l n o t b e immune from c i v i l l i a b i l i t y i n h i s or her personal capacity " ' ( 1 ) when t h e C o n s t i t u t i o n o r l a w s o f the U n i t e d S t a t e s , or t h e C o n s t i t u t i o n o f t h i s State, or laws, r u l e s , or r e g u l a t i o n s of t h i s S t a t e e n a c t e d o r promulgated f o r the purpose o f r e g u l a t i n g t h e a c t i v i t i e s o f a governmental agency r e q u i r e o t h e r w i s e ; or "'(2) when the State agent acts willfully, maliciously, fraudulently, i n bad f a i t h , beyond h i s o r h e r a u t h o r i t y , o r under a mistaken i n t e r p r e t a t i o n of the law.' "792 So. 2d a t 405. Although C r a n m a n was a p l u r a l i t y d e c i s i o n , t h e r e s t a t e m e n t o f l a w as i t pertains to State-agent immunity set forth in C r a n m a n was s u b s e q u e n t l y a d o p t e d b y t h i s C o u r t i n E x p a r t e R i z k , 791 S o . 2 d 911 ( A l a . 2 0 0 0 ) , a n d E x p a r t e B u t t s , 775 S o . 2 d 173 ( A l a . 2 0 0 0 ) . "Additionally, this Court has stated: "'This Court has established a "burden-shifting" process when a party r a i s e s the defense of State-agent immunity. G i a m b r o n e v . D o u g l a s , 874 S o . 2 d 1 0 4 6 , 1 0 5 2 (Ala. 2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the p l a i n t i f f ' s claims a r i s e from a f u n c t i o n that would e n t i t l e 11 1 0 9 0 7 6 2 ; 1090781 the State agent to immunity. Giambrone, 874 So. 2d a t 1 0 5 2 ; Ex p a r t e Wood, 852 So. 2d 7 0 5 , 709 ( A l a . 2002 ). I f the State a g e n t makes s u c h a s h o w i n g , t h e b u r d e n t h e n s h i f t s t o t h e p l a i n t i f f t o show t h a t the State agent acted w i l l f u l l y , m a l i c i o u s l y , f r a u d u l e n t l y , i n bad f a i t h , or beyond h i s o r h e r a u t h o r i t y . G i a m b r o n e , 874 So. 2d a t 10 52 ; Wood, 852 So. 2d a t 7 0 9 ; Ex parte D a v i s , 721 So. 2d 6 8 5 , 689 ( A l a . 1 9 9 8 ) . "A S t a t e a g e n t a c t s b e y o n d a u t h o r i t y and i s therefore not immune when he or she ' f a i l [ s ] to discharge d u t i e s pursuant to detailed rules or regulations, such as t h o s e s t a t e d on a c h e c k l i s t . ' " Giambrone, 874 So. 2d a t 1052 ( q u o t i n g Ex p a r t e B u t t s , 775 So. 2d 1 7 3 , 178 (Ala. 2000)).' "Ex p a r t e Estate (Ala. 2006)." ^ / 7 \ " i _ Ex parte r\ r\ \ of Reynolds, Yancey, 8 So. 3d A. to assist call she that on the assignment and to had no worker other of just did Wilson next DHR as So. 2d 450, she 452 was 1090762 a Jones "shadow w o r k e r " calls Wilson observe the responsibilities. Jones Wilson to t u r n business 304-05. Gilnita as Wilson employee the argues at C a s e No. 1. Jones 946 II was was received on-call Levert considered and that i n her on-call day. The during process argues her had court the before found on- but that child-welfare reports trial 12 she a assigned that as an staff same d u t y as 7:30 on that a.m. Levert 1090762; 1090781 presented s u b s t a n t i a l evidence t h a t Jones had r e s p o n s i b i l i t i e s beyond merely observing Wilson t u r n i n an o n - c a l l r e p o r t . a factual dispute involvement properly with submitted, Because the t r i a l existed the and t h a t she a l s o had a duty t o involving report and i t concluded to a summary j u d g m e n t We found Jones the that had any report was J o n e s was n o t e n t i t l e d disagree. Jones and v a r i o u s that on t h e b a s i s whether whether that court DHR s u p e r v i s o r y p e r s o n n e l a " s h a d o w w o r k e r " was a s s i g n e d performing of State-agent a c e r t a i n task as a t y p e immunity. a l l testified to observe another of t r a i n i n g worker exercise and t h a t a s h a d o w w o r k e r d i d n o t h a v e t h e same r e s p o n s i b i l i t i e s a s did the worker Levert the produced same r e p o r t who was being observed. to indicate that as d i d W i l s o n Jones The had a duty was W i l s o n ' s that by L e v e r t ' s expert any c h i l d - w e l f a r e s t a f f witness, worker testimony to turn i n statement t h o u g h t J o n e s w o u l d h a v e h a d t h e same d u t i e s statement only t h a t she she d i d and t h e a former had a duty DHR employee, to follow a l l DHR p o l i c y , i n c l u d i n g t h e p o l i c y t h a t a l l o n - c a l l r e p o r t s were t o be t u r n e d day. This i n before testimony ignores the beginning the fact 13 of the next business that Jones shadowed Wilson 1090762; 1090781 only far as workplace. Wilson as Wilson's interview B o t h J o n e s and told Wilson Jones she could accompanied Wilson and the to r e t r i e v e the to the DHR go to undertook r e p o r t by h e r s e l f ; Jones d i d not no involvement a report the of the supervisor i n the point that to at t h a t at t h a t Jones the her point neither mother's house accompanied Wilson the to back turn in the on-call of the on-call assist in i t s preparation i n to Eubanks. of dispute Jones c l e a r l y in this o n - c a l l i n v e s t i g a t i o n o f M.S. who mother preparation Wilson report nor and report. undertake to t u r n the and mother back prepare the testified home h o s p i t a l records office with would have been had case--whether was responsible or turned for i n to assigning o t h e r w o r k e r s t o f u r t h e r i n v e s t i g a t e the i n c i d e n t upon r e c e i p t of the report. association Jones By with that time, Wilson demonstrated discharging statute, rule, terminated that Levert's duties imposed claims to State-agent on State a department o r r e g u l a t i o n , i n s o f a r as t h e agent performs the duties 14 arise i n that from a immunity, i . e . , agency by statute, rule, or r e g u l a t i o n p r e s c r i b e s the manner f o r p e r f o r m i n g the Jones's the i n v e s t i g a t i o n . f u n c t i o n t h a t would e n t i t l e her "(3) had or the d u t i e s manner and Ex 1090762; 1090781 p a r t e C r a n m a n , 792 S o . 2 d 3 9 2 , 405 ( A l a . 2 0 0 0 ) . to prove that fraudulently, to be e n t i t l e d genuine for a writ 2. of material fact worker, so as n o t conclude exists t o State-agent immunity; as therefore, that to Henderson Henderson and E l i z a b e t h and W a l t e r to investigate respectively, testified Jones's her p e t i t i o n Katie that Walter they t o M.S.'s c a s e u n t i l i t as t h e i n t a k e worker f o l l o w i n g M.S.'s d e a t h . were n o t t h e y were a n d t h e CA/N They b o t h involvement w i t h the case a f t e r M.S.'s d e a t h c a n n o t b e a b a s i s f o r a n y l i a b i l i t y any Levert's failure initial Henderson to properly call investigate t o DHR. Levert and W a l t e r were employees considered argue s t r a n g e r s t o t h e e v e n t s made t h e b a s i s L e v e r t ' s c o m p l a i n t and t h a t t h e i r from a child-welfare staff worker the case argues o f DHR, arising each that after because o f t h e m was who h a d t h e d u t y t o respond t o r e p o r t s o f s u s p e c t e d c h i l d abuse i n accordance DHR no o f mandamus i s d u e t o b e g r a n t e d . t h a t t h e y were complete of We failed maliciously, or beyond h e r a u t h o r i t y aware o f t h e a n y t h i n g r e l a t i n g assigned willfully, t o State-agent immunity. C y n t h i a Pate Both acted i n bad f a i t h , issue entitlement Jones Levert policy. The trial court 15 found that Levert with presented 1 0 9 0 7 62; 1090781 s u b s t a n t i a l e v i d e n c e t h a t i f W i l s o n ' s r e p o r t had been submitted, then M.S. b e f o r e on and not received M.S. decided before by a j u r y , entitled intake should to the deadlines court Wilson's h i s death report were questions b y DHR each of fact knew t o be i t c o n c l u d e d t h a t Henderson and W a l t e r were because that a CA/N worker to no testified Wilson's investigate undisputed Henderson saw f o r f a i l i n g t o a s s i g n an M.S.'s d e a t h . s h e made disagree. she never s h e c a n n o t be h e l d r e s p o n s i b l e and We a l l e g a t i o n s o f abuse b e f o r e death. about Henderson and whether immunity. that established found that whether to State-agent worker have known e a c h o f them h a d a d u t y t o a c t contends Eubanks report pursuant Because the t r i a l Walter about and W a l t e r h i s death and t h a t M.S.'s c a s e policy. Henderson properly Levert's Consequently, i ti s such assignment that Eubanks before assigned M.S.'s her to c o m p l e t e t h e i n t a k e p r o c e s s o n M.S. a f t e r h e h a d d i e d a n d t h a t she had never further told her said heard testified had been to enter that written those o f M.S. before Eubanks gave by Wilson notes time. her notes Henderson that s h e was and t h a t Eubanks instructed her intake into she d i d as i n s t r u c t e d , that report. Henderson although 16 she had n o t seen t h e 1090762; 1090781 notes before said she t u r n e d Walter the M.S.'s d e a t h a n d s h e n e v e r testified never heard testified that been written enter those Henderson, although Eubanks of M.S. Eubanks gave by Wilson notes before assigned her t o complete and t h a t said welfare or Walter staff including by Wilson's upon and report; Walter i t also preceded also s h e was t o l d h a d instructed before her to t o M.S. expert had a duty intake had been the f a c t u a l This properly dispute that M.S.'s death, contrary was childpolicy, were testimony t o be assumed i n and acted surrounds that t o Henderson and that assignments any a l l DHR turned that that h i s death a n d CA/N r e p o r t s assumes 17 indicate before to follow death and i n t o Eubanks. to witness Like instructed, M.S.'s produced a specified period. report ignores Walter s a i d she t u r n e d Levert Levert's the p o l i c y that that that Eubanks the notes had a duty worker completed w i t h i n time. she d i d as she h a d been testimony statements and t h a t she i n t o h e r CA/N i n v e s t i g a t i o n r e p o r t . Walter only that her notes n e v e r saw t h e r e p o r t W i l s o n Henderson the that she had n o t seen The Wilson i n t o Eubanks. CA/N i n v e s t i g a t i o n on M.S. a f t e r he h a d d i e d had she saw t h e r e p o r t to the undisputed 1090762; 1090781 evidence. Both no knowledge after his Henderson a b o u t M.S. M.S.'s d e a t h , case. strangers claims or a from department as the and duties Levert or her agency were before would rule, or rule, e i t h e r Henderson as not to that no We conclude exists to Henderson's immunity; mandamus a r e due or therefore, t o be be entitled genuine Walter's their Tracy 18 Eubanks Levert's of duties them imposed regulation, the agent performs So. at 2d or W a l t e r faith, to or 405. acted beyond State-agent of m a t e r i a l entitlement petitions granted. 3. issue death. prescribes 792 on complete each or the State m a l i c i o u s l y , f r a u d u l e n t l y , i n bad so his entitle Cranman, that both had until workers that regulation and they abuse a s s i g n e d t o be statute, the d u t i e s immunity. agent alleged Walter that by that demonstrated manner to prove authority as and of i . e . , "(3) d i s c h a r g i n g statute, i n that failed willfully, report Walter a function manner f o r p e r f o r m i n g the testified i n v e s t i g a t i o n o f M.S. Henderson arise insofar the when t h e y w e r e to State-agent immunity, on Walter C l e a r l y , Henderson t o any Both and for to a fact Statewrit of 1090762; As 1090781 previously Wilson's held on-call report; responsible CA/N worker Levert insists therefore, death Eubanks i n the report, that she argues, to assign M.S.'s o f abuse. not turn Eubanks f o rfailing before allegations did noted, only investigate not contend that t o make u p o n r e c e i p t o f t h e r e p o r t that, a considered supervisory t o be responsibility completed that Levert's that she never obligated trial she c a n n o t be to within court a found employee child-welfare assure that the periods that report t o M.S.'s c a s e Henderson staff Levert worker investigatory presented that Wilson it. properly DHR duty turned who the report 19 also had the reports were policy. The of assigning as any o t h e r policy. to follow court As DHR i n her report Because the t r i a l i n v o l v i n g whether was r e c e i p t o f an o n - c a l l to follow Eubanks's argues s u b s t a n t i a l evidence responsibility upon t h e p r o p e r worker and W a l t e r , Eubanks r e c e i v e d dispute Eubanks a n d a l s o t h a t E u b a n k s h a d t h e same d u t i e s child-welfare assumed staff s h e was and a l s o s p e c i f i e d b y DHR Eubanks had t h e s u p e r v i s o r y workers o f DHR, Wilson saw i t . argues t h a t Eubanks m i s h a n d l e d t h e assignments as saw an i n t a k e w o r k e r a n d a to does she never with policy and that found a f a c t u a l was p r o p e r l y submitted 10907 62; 1090781 and/or r e c e i v e d , i t c o n c l u d e d t h a t E u b a n k s was n o t e n t i t l e d t o a summary j u d g m e n t b a s e d Wilson adamantly on S t a t e - a g e n t insists that immunity. she turned We agree. i n her o n - c a l l report concerning her i n i t i a l i n v e s t i g a t i o n of Levert's of o f M.S.; alleged that she abuse never saw presents a genuine that placed she investigated and a.m. reports said further she knew This adamantly insists discrepancy of m a t e r i a l f a c t . Wilson testified the her report on t h e i n v e s t i g a t i o n o f M.S. she l e f t 5. before that She t h e DHR stated she p l a c e d the teenager clearly on on O c t o b e r she as report before together just report. issue her Eubanks's inbox 2:00 the Eubanks report upon office that case shortly she c l i p p e d t h e case her had initial been report as w e l l . Eubanks, the j u r y could report and Wilson turned testified Wilson I f the j u r y b e l i e v e s Wilson that into Eubanks i t in. that that misplaced Furthermore, Eubanks the conclude reports Wilson or and they 20 were that report and d i s b e l i e v e s d i d turn mishandled to two properly enter completing i n the i t after b o t h H e n d e r s o n and i n s t r u c t e d them in Wilson d i d n o t u n d e r s t a n d why E u b a n k s h a d n o t r e c e i v e d h e r on M.S. she before them i n t o t h e box. teenager's i n v e s t i g a t e d based whose Walter notes after from M.S.'s 1090762; death. 1090781 From E u b a n k s had also that not only Wilson's resolved at the Wilson's report. the Eubanks testimony, could notes before Such factual summary-judgment demonstrated jury that stage that M.S.'s d e a t h , disputes of Levert's f u n c t i o n t h a t would e n t i t l e her conclude the claims but cannot be proceedings. arise from a to State-agent immunity, i . e . , "(2) exercising ... her judgment in administration of a department or agency g o v e r n m e n t , i n c l u d i n g ... e x a m p l e s s u c h a s : the of fi "(d) assigning, or supervising personnel; or " ( 3 ) d i s c h a r g i n g d u t i e s i m p o s e d on a d e p a r t m e n t o r a g e n c y by s t a t u t e , r u l e , o r r e g u l a t i o n , i n s o f a r as t h e s t a t u t e , r u l e , o r r e g u l a t i o n p r e s c r i b e s the manner f o r p e r f o r m i n g t h e d u t i e s and t h e S t a t e a g e n t p e r f o r m s the d u t i e s i n t h a t manner " Cranman, 792 testimony that, willfully, her thus So. 405. i f believed, in failing satisfying a genuine at Levert, would however, prove that m a l i c i o u s l y , f r a u d u l e n t l y , i n bad authority Douglas, 2d 874 So. issue her 2d to properly burden 1046, of 1052 of m a t e r i a l act proof on f a c t e x i s t s as 21 Eubanks faith, or Wilson's under (Ala. 2003). produced We acted beyond report, Giambrone conclude to whether v. that Eubanks 1090762; 1090781 is entitled for a writ to State-agent Wilson placed; for maintains she p l a c e d therefore, death. turned of the alleged Wilson visited the records relating ended see t h e r e p o r t , argues report before completion that agent that before M.S.'s She s t a t e d she does n o t know had a duty Because that what the copies agree. 22 of and t h a t h e r i f Eubanks d i d happened to turn toi t . i n her on-call day next f o l l o w i n g t h e the t r i a l court i n v o l v i n g whether t h e r e p o r t had been We Levert's she p r e p a r e d and hospital visit i t concluded that Wilson immunity. t o be t h e e a r l y morning hours a f t e r she there. of the report. M.S. i n responsible to investigate of her grandson t o M.S.'s Wilson o f h e r on- were she c a n n o t be h e l d 7:30 a.m. o n t h e b u s i n e s s factual dispute submitted, during reports t h e mother's house and had o b t a i n e d responsibility Levert such DHR w o r k e r s abuse her report consistently testified i n the report had where she argues, of other Wilson a l l e g a t i o n s concerning box i n her o f f i c e the f a i l u r e report not that her p e t i t i o n denied. C a s e No. 10 9 0 7 8 1 - - T y s h e l l e i n v e s t i g a t i o n of Levert's Eubanks's therefore, o f mandamus i s d u e t o b e B. call immunity; found a properly was n o t e n t i t l e d t o S t a t e - 1090762; 1090781 As p r e v i o u s l y d i s c u s s e d , she Wilson turned report in investigation Eubanks just report. This material her of fact. she turned teenager on-call Levert's as adamantly discrepancy in whose the could conclude 5, that an i n f e r e n c e Eubanks's thus, investigation jury report could or into never saw in issue report on the the testimony her while M.S.; on call the on the jury and report the that to f u r t h e r i n v e s t i g a t e Eubanks reports or mishandled i t . had any Levert's that mishandling reason never of the 23 failure report death and i f the j u r y saw t o know a l l e g a t i o n s was Wilson's them i n the report However, she from instructed a f t e r M.S.'s had t u r n e d that of that as p r e v i o u s l y n o t e d , t e s t i m o n y testimony conclude her turned that Wilson never of d i s b e l i e v e s Eubanks, notes i n t o t h e i r t h a t Eubanks m i s p l a c e d and, and she that initial abuse Wilson's handled her a genuine with i n d i c a t i n g that supports that f o r the f a i l u r e Likewise, Wilson's alleged presents M.S. also Wilson to enter report on 2007, and W a l t e r believes clearly she E u b a n k s was r e s p o n s i b l e Henderson of testified report case of October followed. concerning I f the j u r y b e l i e v e s night that report adamantly t e s t i f i e d that Wilson's further necessary, to i n the turn in process the her of 1090762; turning 1090781 i t in resulted i n the failure Levert's a l l e g a t i o n s of abuse. We disputes c a n n o t be the the resolved at demonstrated that discharging statute, rule, duties that investigate such f a c t u a l summary-judgment State Cranman, agent 792 testimony willfully, stage of that, 2d at the on a department duties 405. i f believed, her 1052. We conclude in Levert, would exists as to her to p r o p e r l y agency by or prove that or that turn Wilson's petition a genuine entitlement for a writ issue 24 874 or So. material State-agent of mandamus Conclusion produced acted beyond report, to denied. IV. of " Wilson faith, i n her and manner however, burden of p r o o f under Giambrone, that a statute, rule, m a l i c i o u s l y , f r a u d u l e n t l y , i n bad satisfying from the manner f o r p e r f o r m i n g the d u t i e s performs So. arise to State-agent immunity, i . e . , imposed authority in failing therefore, claims o r r e g u l a t i o n , i n s o f a r as t h e regulation prescribes her reiterate Levert's f u n c t i o n t h a t would e n t i t l e her the further proceedings. Wilson "(3) to thus 2d at fact immunity; i s due to be 10907 62; In and 1090781 case Walter are e n t i t l e d the p e t i t i o n claim that n o . 1 0 9 0 7 6 2 , we c o n c l u d e to State-agent Jones, immunity, a s t o t h e m ; we d e n y t h e p e t i t i o n she i s e n t i t l e d no. 1090781, she i s entitled we d e n y to State-agent the petition to State-agent 1090762--PETITION GRANTED 1090781--PETITION Henderson, a n d we grant as t o E u b a n k s ' s immunity. as t o W i l s o n ' s In case claim that immunity. AS WALTER AND DENIED AS TO EUBANKS; Cobb, that TO WRIT JONES, HENDERSON, AND ISSUED. DENIED. C . J . , and S t u a r t , Bolin, 25 and Murdock, J J . , concur.

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