Edwards v. Pearson
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Rita Edwards, as mother of Raven Edwards, appealed the grant of summary judgment entered in favor of Penny Pearson on the ground of State-agent immunity. In 2014, Raven, an eight-year-old student at Airport Road Elementary School, attempted to cross the Deatsville Highway to board a school bus being driven by Pearson, an employee of the Elmore County Board of Education. As she did so, Raven was struck by an automobile, and she ultimately died as a result of her injuries. Edwards sued for wrongful death, alleging Pearson negligently had instructed and/or invited Raven to cross the highway to board the school bus. Pearson filed an answer denying the allegations in the complaint and asserting various affirmative defenses, including, among others, State-agent immunity. After review, the Alabama Supreme Court determined Pearson demonstrated she was entitled to State-agent immunity, and Edwards failed to demonstrate that an exception to that immunity applied. Accordingly, the trial court properly entered a summary judgment in Pearson's favor.
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Rel: May 22, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2019-2020 1180801 Rita Marie Edwards, as mother of Raven June Edwards, a deceased minor v. Penny Pearson Appeal from Elmore Circuit Court (CV-15-900369) STEWART, Justice. Rita Marie Edwards, deceased minor, appeals as mother of Raven June Edwards, a from a summary judgment entered in favor of Penny Pearson on the ground of State-agent immunity. 1180801 For the reasons discussed below, we affirm the judgment. Procedural History On November 5, 2014, Raven Edwards, an eight-year-old student at Airport Road Elementary School, attempted to cross the Deatsville Highway ("the highway") to board a school bus being driven by Pearson, Board of Education. automobile, As an employee she did so, and she ultimately On December 21, 2015, of the Elmore County Raven was died as a struck by an result of her injuries. Rita Marie Edwards ("Edwards"), Raven's mother, sued Pearson and fictitiously named defendants A, B, and C, asserting claims of wrongful death and negligent infliction of emotional distress. Edwards alleged that Pearson negligently had instructed and/or invited Raven to cross the highway to board the school bus. Pearson filed an answer denying the allegations in the complaint and asserting various affirmative defenses, including, among others, State-agent immunity. On August 25, 2016, Pearson filed a motion for a summary judgment. other In support of her motion, Pearson submitted, among evidence, affidavits, 2 excerpts from deposition 1180801 testimony, photographic exhibits, and video footage from a camera on the school bus. On November 4, 2016, Edwards filed an amended complaint asserting only a claim of wrongful death. The parties thereafter engaged in further discovery. On November 16, 2018, Pearson filed another motion for a summary judgment grounded on State-agent attached to her motion excerpts Pearson, Thomas, Edwards, and J. expert witnesses immunity. Pearson of deposition testimony of Robert Berkstresser retained by Edwards. and Sandra Pearson also attached a map of the area where the accident occurred, a copy of Ex parte Mason, 146 So. 3d 9, 14 (Ala. 2013), and a letter to "Parents" from Ray Mullino, the Transportation Coordinator for the Elmore County Board of Education ("the Mullino letter"). On February 16, opposition to response, Edwards Rauschenberger, 2019, Pearson's Edwards filed summary-judgment attached an a response motion. affidavit an eyewitness to the accident; from in To her Cody the accident report; excerpts from the Alabama School Bus Driver Handbook ("the State handbook"), published by the Alabama Department of Education, the Elmore County Public 3 Schools Department of 1180801 Transportation School Bus Driver Handbook ("the Elmore County handbook"), and the Alabama Commercial Driver License Manual published by the Alabama Department of Public Safety ("the CDL manual"); the Mullino letter; deposition excepts from Pearson, Berkstresser, and Dr. Lila Laux, an expert in human-factors engineering; and photographs of the scene of the accident. The trial court held a hearing on the summary-judgment motion on February 20, 2019. On June 5, 2019, the trial court entered a summary judgment in favor of Pearson on the basis of State-agent immunity. Edwards appealed. Facts The evidence facts are largely undisputed, submitted in support summary-judgment motion is but a review of the of and in opposition necessary to determine to the whether Pearson is entitled to State-agent immunity. Pearson November 5, had been 2014, she driving a school drove by bus Raven's since house, 2008. which On was located on the highway. Raven was not in front of her house, which, Pearson said, was unusual. Pearson continued her route, turning left onto Sunset Drive in a subdivision across the street from Raven's house. After she picked up the students 4 1180801 from that subdivision, her route returned her to the stop sign on Sunset Drive across from Raven's house at the intersection of Sunset Drive and the highway. Pearson saw Raven coming out of the front door to her house and running across the front yard, heading toward the highway. Pearson testified: "So I immediately turned on all my lights, put my brake on, opened the door. I was coming down the steps because her mama wasn't with her. So I was going to go get her. And then -- I mean, I never got off the steps, and then I just heard a noise and then seen -- you know, I never saw the truck hit her, but I -- I could just -- I mean, you just heard it. And then -- and then she was just there in the road. "And so then I ran to her. And out then and was coming up to her. mom got there, I immediately went, the bus and called 911 and then know, called my boss." then her mama ran So as soon as her you know, back to called my -- you Pearson testified that she thought it was best for her to stop the bus where she did. Pearson acknowledged that, based on the position of the bus, could not see the warning oncoming traffic on the highway lights on the bus. Pearson also acknowledged that she could have turned left onto the highway as she was planning to do, and then she could have stopped the bus on the highway to pick up Raven. She testified, however, 5 1180801 that she was not sure that that would have been a better decision because Raven was already running toward the bus. Pearson agreed in her deposition that establishing designated bus stops is the responsibility of the local board of education and the local transportation supervisor. Pearson acknowledged having seen the Mullino letter, but she testified that Mullino had never told her not to make an unscheduled stop. Pearson also agreed that the State handbook applies to school-bus drivers in Alabama. Edwards's deposition testimony indicated that Raven was not ready for school when the bus first drove by the designated stop in front of her house and that Edwards had waved at Pearson to let her know Raven would be riding the bus. Edwards testified that she did not intend to walk Raven to the bus stop; it was cold and she had her two other small children she was caring for that morning. After Raven left the house, Edwards heard the impact and ran outside. Rauschenberger stated in his affidavit that he was traveling north on the highway and that, as he approached the intersection of the highway and Sunset Drive, he noticed a young girl standing to his left at the end of her driveway. He 6 1180801 testified that a school bus was just stopping on Sunset Drive. According to Rauschenberger, the girl "appeared to be anxious to cross the road." After he passed, in his rearview mirror he saw the young girl run into the highway and get hit by an automobile. The State handbook excerpt submitted by Edwards provides that "the exact location of each stop [is] the responsibility of the local board of education and the transportation supervisor." The State handbook lists "several things [a bus driver] should keep in mind in making stops," including, among others: "Students who must cross the road should do so under the watchful eye of the school bus driver and the protection of the school bus warning system. "School bus stops should street intersections... not be located at "It is recommended that the warning system always be used when loading or unloading students." On another page, under the heading "RULES TO LOAD AND UNLOAD STUDENTS," the State handbook reads: "1. The driver should NEVER change stops. Unsafe situations should be reported to the supervisor. 7 1180801 ”2. Students should load or unload ONLY at their school or designated stop. ”4. Stops should be at least railroad tracks and intersections. 100 ”5. Stops prohibited.” highways (Capitalization excerpt in from the on interstate original.) Elmore Edwards also County handbook, feet from are submitted which includes an a section that mirrors the language in the State handbook, with the exception that the Elmore County handbook does not include non-standard capitalization or emphasis.1 In addition, manual. The Edwards submitted an excerpt from the CDL CDL manual states: ”Each school district establishes official routes and official school bus stops. All stops should be approved by the school district prior to making the stop. You should never change the location of a bus stop without written approval from the appropriate school district official.” 1The excerpt from the Elmore County handbook Edwards submitted with her response in opposition to Pearson's summary-judgment motion indicates it was revised August 1, 2016. The accident occurred November 5, 2014. Neither party addresses whether the submitted version of the handbook was in effect at the time of the accident. 8 1180801 Both parties submitted the Mullino undated and addressed to "Parents." letter, It states, which is in pertinent part: "The purpose of this letter is to request that your child(ren) arrive at the designated stop at least 5 minutes prior to the bus arrival. Your child(ren)'s bus driver has reported a concern that the child(ren) is not present at the stop prior to the bus's arrival. ... Please note that the bus driver is directed to stop only ONCE at the designated stop. Often drivers travel through a street, and must return by passing the designated stop again. I HAVE DIRECTED THE BUS DRIVER TO MAKE ONLY ONE STOP." (Emphasis and capitalization in original.) Thomas, testified who had been a school-bus driver for 23 years, in her actions Pearson Thomas opined deposition took that on the the that she morning only disagreed of November options Pearson with 4, the 2015.2 had when confronted with the situation were either to turn left and leave Raven behind, or to turn right, circle around, and then pick up Raven. Thomas agreed that Pearson was in a bad position and that, no matter what choice Pearson made, there was a risk Raven would be injured. Thomas acknowledged that 2Although Thomas had been hired by Edwards, Pearson, rather than Edwards, submitted excerpts from her deposition testimony. 9 1180801 Raven could have attempted to cross the highway while the bus sat at the stop sign waiting to make a left turn. Thomas testified that there was nothing in the State handbook or the Elmore County Pearson was handbook to address the specific situation faced with and that Pearson had to make split- second decision and a judgment call. Berkstresser, who was retained by Edwards, had 41 years of experience in the school-bus-transportation field as a bus driver, supervisor of operations, and safety and training manager. Berkstresser testified that he had reviewed the State handbook, Pearson's deposition testimony, Edwards's deposition testimony, and Berkstresser had not reviewed the the a summary accident statements of report. any other witnesses. Berkstresser was asked: ”Q. Okay. What is a bus driver supposed to do when a child is sitting there across a dangerous road and, through no fault of the bus driver's, himor herself, they approach the child across a busy road? What are they supposed to do? What should Penny have done at that point?” Berkstresser replied: ”A. At that point she should have had left-turn indicator on to make a left turn Deatsville Highway. If she felt compelled to slow the bus down and pull over and activate lights, that would have been -- that would have 10 of her onto then her been 1180801 acceptable; however, again, not according to policy had she would have been following the procedure [sic]. "However, what is missed here is the golden opportunity: When this first happened[3] and Raven's mother was in -- was present, at that point Penny Pearson should have again turned her left-turn indicator on, made the left turn onto Deatsville Highway, come to a stop, and addressed that with the -- with the parent or, better yet, made the left-hand turn onto Deatsville Highway and continued on to school and then report that to her supervisor.” Berkstresser testified that Pearson's actions in attempting to pick up Raven at an undesignated stop and having Raven cross the highway without the protection of the stop arm and red light on the bus violated industry safe-loading standards and the Elmore County School District's policy. Edwards also submitted excerpts of deposition testimony from Dr. Laux, a proffered expert in human-factors 3Berkstresser testified that he recalled Edwards's deposition testimony indicating that, on another occasion, Edwards walked Raven to the bus stop after she had missed the bus and Pearson stopped across the highway, walked across to retrieve Raven, and held Raven's hand while they crossed the highway to board the bus. Berkstresser testified that that indicated that Pearson did not appreciate the danger that her actions had put Raven in. Edwards's deposition excerpt attached to Pearson's first summary-judgment motion includes testimony regarding that scenario having occurred previously. Neither party emphasizes it, however, so we have included it only for contextual purposes. 11 1180801 engineering. Dr. Laux testified that she determines how people respond to various circumstances and that she considers all the cognitive, perceptual, person in determining and how learning that person capabilities would of respond a to experiences. Dr. Laux testified that, when Pearson "pulled as far forward as she did at the intersection and put her -- and stopped and put her warning lights and all that on and started to get out, that's when I think she did something wrong." Dr. Laux further testified: "Well, basically, I think that [Pearson] should not have stopped there. And when she did stop and then open the door and came out, I think that was invitation to Raven to come across the road. So, I mean, an I think that was the precipitating factor for Raven's behavior." Dr. stop Laux also testified that if the bus had stopped at the sign long enough, Raven could have viewed that as an invitation to run across the highway to board the bus. Standard of Review "'"We review a summary judgment de novo." Potter v. First Real Estate Co., 844 So. 2d 540, 545 (Ala. 2002) (citation omitted). "Summary judgment is appropriate only when 'there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.'" Ex parte Rizk, 791 So. 2d 911, 912 (Ala. 2000) (citations omitted).'" 12 1180801 Hollis v. City of Brighton, 950 So. 2d 300, 303-04 (Ala. 2006)(quoting Hollis v. City of Brighton, 885 So. 2d 135, 140 (Ala. 2004)). Discussion This Court has explained that "'[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 ... exercising judgment in the discharge of duties imposed by statute, rule, or regulation in ... educating students.'" Ex parte Butts, 775 So. 2d 173, 177 78 (Ala. 2000)(quoting Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000), and adopting the Cranman test State-agent immunity). for determining We have also explained that "educating students" encompasses "not only classroom teaching, but also supervising and educating students in all aspects of the educational process." Ex parte Trottman, 965 So. 2d 780, 783 (Ala. extends 2007). to Exercising bus drivers judgment in performing supervising official students duties and exercising discretion in supervising students. Ex parte Mason, 146 So. 3d 9, 14 (Ala. 2013). 13 1180801 Once a State agent meets his or her initial burden of "demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity" "the burden then shifts to the plaintiff to show that the State agent faith, acted willfully, maliciously, fraudulently, in bad or beyond his or her authority." Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006)(citing Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003), and Ex parte Wood, 852 So. 2d 705, 709 (Ala. 2002)). "'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."'" Reynolds, 946 So. 2d at 452 (quoting Giambrone, 874 So. 2d at 1052, quoting in turn Ex parte Butts, 775 So. 2d at 178). Edwards first argues that Pearson did not meet her burden of demonstrating that Edwards's claims arose from a function that would entitle Pearson to immunity. Holloman ex rel. Holloman v. Edwards, Harland, 370 F.3d relying on 1252, 1265 (11th Cir. 2004), asserts that this Court must first consider the general nature of Pearson's action to determine whether she was performing a legitimate job-related function that fell 14 1180801 within her job description. Court of Appeals whether the for the government legitimate job-related job-related goal), In Holloman, the United States 11th Circuit employee explained: was function (a) (that (b) through means ”We ask performing a pursuing a is, that were within his power to utilize.” 370 F.3d at 1265. Edwards argues that, at the time the accident occurred, Pearson was not performing a "legitimate job-related function” because, by making an unscheduled and unapproved bus stop to pick up Raven, Pearson, in effect, created a new bus stop and, in doing so, authority. Pearson's Edwards Edwards job contends, asserts function exceeded her discretion that does not it is involve and undisputed that establishing bus stops. Edwards points to deposition testimony from Pearson in which she acknowledged that the bus-stop responsibility of the local transportation supervisor. board Edwards of locations education further are the and asserts the that Pearson had been instructed (via the Mullino letter) that, if a student was not at his or her scheduled stop on time, was to continue the route, leaving the student behind. 15 she 1180801 As Pearson points out, however, Holloman involves an analysis of qualified immunity under federal law; it does not involve an analysis of State-agent immunity under Cranman or Alabama law. Cranman and subsequently parte Mason, This a Court similar follows the analysis adopted in Ex parte case involving a detailed in Butts. In Ex bus driver, we explained: "The determination as to whether a bus driver is entitled to State-agent immunity rests upon whether the claims against the bus driver are based on acts arising from the performance of official duties and the exercise of discretion in the supervision of students. ... [I]n this case, the claims arise from Mason's conduct in supervising a student's getting off the school bus. Because the conduct at issue in this case involves the exercise of discretion in supervising students, Mason has satisfied his burden of demonstrating that [the plaintiff's] claims arise from his exercise of discretion while performing his duties as a bus driver in supervising students and that he is entitled to State-agent immunity.” 146 So. 3d at 14. The evidence indicated that Pearson, bus around in a cul-de-sac, Sunset highway Drive at across the the after turning the was traveling to a stop sign on intersection of street Raven's from intention of making a left turn. Drive house and with the the Pearson saw Raven running across her yard toward the highway. 16 Sunset Pearson made the quick 1180801 decision to activate the warning lights on the bus, and she began to exit the bus with the intention of escorting Raven across the highway. Before Pearson was able to exit the bus, Raven attempted to cross automobile. the highway and was struck by an Pearson's actions were taken in contemplation of supervising (and assisting) a student in boarding the school bus. Based on this factual scenario, there can be no question but that Pearson was performing her duties as a bus driver in supervising students exited bus. the demonstrating when she Accordingly, that Edwards's stopped the school Pearson met her claims arose bus burden from and of Pearson's exercise of discretion while performing her official duties and that she thus is entitled to State-agent immunity. After entitled Edwards Pearson met her burden to to demonstrate maliciously, authority, State-agent court and authority. immunity, that fraudulently, on the Pearson burden she was shifted "act[ed] in bad faith, or under a mistaken Cranman, 792 So. of demonstrating to willfully, beyond his or her interpretation of the law.” 2d at 405. Edwards's argument in the trial appeal Edwards is asserts that that 17 Pearson acted Pearson's beyond her responsibilities 1180801 regarding bus stops were nondiscretionary and that, creating an unauthorized and unscheduled bus stop, violated Elmore rules in the State handbook, the by Pearson County handbook, and the CDL manual. Pearson asserts that, in Ex parte Mason, this Court was confronted with the argument that a bus driver did not follow certain rules and procedures and held that the bus driver was entitled to State-agent immunity. In Ex parte Mason, a fifthgrade student was riding a school bus being driven by Mason. The student exited the school bus at a stop across a highway from his house that was a designated stop but that was not his designated stop. The student was struck by an automobile and injured when crossing that highway. The student's grandfather sued Mason and others, alleging that Mason failed to properly supervise the student and failed to ensure that the student exited the bus at the appropriate bus stop. The grandfather alleged that Mason acted beyond his authority and violated, among other rules, the following rules and regulations in the State handbook and the CDL manual: The driver should never change stops; Students should load or school or designated stop; unload only at their 1180801 Students highway; should not cross a median or divided ”— Students should wait on the side of the road on which they live ....” Ex parte Mason, 146 So. 3d at 14. It was apparent in Ex parte Mason that the above rules were not followed. We explained, however, that the evidence indicated that Mason did not know that the student exited the bus at the incorrect stop or that he lived across the highway from the stop and would have to cross a busy highway. Further, there was no evidence indicating that Mason "suggested, forced, or otherwise caused” the student to exit the bus at the incorrect location. Id. at 15. Based plaintiff on the in that establishing evidence, that case this "did Mason Court not acted satisfy beyond authority in supervising" the student. Pearson argues "arguably could violation of that have rules known the student's the bus had and some the his that burden scope of the of his Id. driver control regulations concluded in Ex parte over" because he his Mason alleged should have correct bus stop and where the student lived. Pearson's situation, she asserts, is not covered by any rules or regulations and requires the exercise of discretion 19 1180801 because, she says, dangerous situation, she was because, argues with an immediate and which literally required that a split- second decision be made." Edwards "faced (Pearson's brief, at 45.) that Ex parte Mason is distinguishable in Ex parte Mason, the bus driver dropped a student off at a designated bus stop, but, in this case, she asserts, Pearson violated rules and regulations by creating a new bus stop to pick up a student at a dangerous location. Edwards also asserts that the bus driver in Ex parte Mason did not encourage the child to cross the road. Edwards asserts that Pearson created the dangerous situation by stopping the bus, activating the warning door, all of which, system on the bus, she contends, and opening the invited Raven to cross the highway. As explained above, the burden is on Edwards to demonstrate that an exception to State-agent immunity applies. Edwards has not demonstrated that Pearson acted beyond her authority. Pearson did not change the location of a designated bus stop, as Edwards contends. Instead, Pearson was faced with an exigent circumstance that involved a child located across a busy highway from the bus she usually boarded. Pearson and 20 1180801 Rauschenberger, the immediately before only the witnesses accident, who observed testified that Raven Raven was approaching the highway, and Rauschenberger stated that Raven appeared to be "anxious" to cross the highway. Pearson established that she was justified to stop the school bus at the intersection because she feared that Raven would cross the highway; it is undisputed that this is precisely what happened before Pearson could exit the bus. Nothing in the State handbook or the Elmore County handbook addresses what course of action a school-bus driver must take if the bus driver observes a student approaching a busy highway and the driver believes the student is in imminent danger. This is precisely the type of situation that requires an exercise of discretion, based on the circumstances as they are known to the school-bus driver at that time. As we have previously explained: "State-agent immunity protects agents of the State in their exercise of discretion in educating [and supervising] students. We will not second-guess their decisions." Ex parte Blankenship, 806 So. 2d 1186, 1190 We note that, in her (Ala. 2000). initial brief on appeal, Edwards does not cite any cases addressing situations in which a State 21 1180801 agent was held to have acted beyond his or her authority by disregarding rules in a handbook.4 In her reply brief, Pearson, for the first time, cites Ex parte Spivey, 846 So. 2d 322 (Ala. 2002), and Giambrone. It is well settled, however, that "'an argument may not be raised, nor may an argument be supported by citations to authority, for the first time in an appellant's reply brief.'” Steele v. Rosenfeld, LLC, 2d 488, 493 (Ala. 2005) (quoting Improved 936 So. Benevolent Protective Order of Elks v. Moss, 855 So. 2d 1107, 1111 Civ. App. 2003)). Even if Edwards had relied & (Ala. on Ex parte Spivey in her principal brief, that case does not support her position. In Ex parte Spivey, a student asserted that a teacher had violated a faculty handbook, OSHA regulations, and an owner's manual for a ”shaper tool,” which, resulted injury. This by student in regulations regarding his cited safety that the did not Court 22 explained were general prevent 4In addition, Edwards did not submit Pearson's summary-judgment motion the handbooks, which would aid this Court in the rules in the handbooks were intended whether they were applicable at the time he asserted, the that the statements teacher from with her response to full text of the determining whether to be mandatory and of the accident. 1180801 exercising his judgment and did not remove the protections of State-agent immunity. Because Edwards 846 So. 2d at 333. failed to demonstrate detailed rules or regulations that that Pearson was there were required to follow in this circumstance, she failed to demonstrate that Pearson acted beyond her authority; thus, Pearson was entitled to State-agent immunity. Conclusion Pearson demonstrated that she was entitled to State-agent immunity, and Edwards failed to demonstrate that an exception to that immunity applied. Accordingly, the trial court properly entered a summary judgment in Pearson's favor, and we affirm the judgment. AFFIRMED. Bolin, Wise, and Sellers, JJ., concur. Parker, C.J., concurs in the result. 23
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