In case no. 1090762, Gilnita Jones, Cynthia Pate Henderson, Elizabeth Katie Walter, and Tracy Eubanks petition this Court for a writ of mandamus directing the Jefferson Circuit Court to enter a summary judgment in their favor on the basis of State-agent immunity in a wrongful-death action brought against them by Angela S. Levert, as personal representative of the estate of M.S. In case no. 1090781, Tyshelle Wilson petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to enter a summary judgment in her favor on the basis of State-agent immunity in the same wrongful-death action. We grant the petition as to Jones, Henderson, and Walter; we deny the petition as to Eubanks (case no. 1090762). We deny the petition as to Wilson (case no. 1090781).
Wilson spoke with the on-call supervisor for the evening, Deborah Key, who advised her to go to the house and confirm that M.S. had been taken to the doctor. Wilson and Jones then went to the house, where they found M.S. in the care of the mother's boyfriend, Nakia McConico. M.S. was asleep on the couch; there were bruises on his forehead and around his eye. Wilson and Jones then traveled to the mother's place of employment to verify that M.S. had been seen by a doctor. The mother told Wilson and Jones that M.S. had fallen off his bicycle, that he had been taken to the hospital where he had seen a doctor on October 4 (the preceding day), and that the paperwork generated by the hospital visit was at the house. Wilson and the mother then returned to the mother's house, where the medical paperwork was located and given to Wilson. Jones did not accompany Wilson on her second visit to M.S.'s house. Wilson took the paper-work and returned to her office. Wilson telephoned Key, the on-call supervisor for the evening, and reported to her the information she had gathered, including the fact that the hospital physician who saw M.S. indicated that his injuries were consistent with a fall from a bicycle. Wilson advised Key that the investigation had been completed, that she was preparing a written report of the investigation, and that she would place the report, together with the hospital-discharge paperwork and the doctor's report, in the DHR intake supervisor's mailbox. Eubanks was the intake supervisor at that time. Wilson says that she prepared written reports of both the investigation of M.S.'s case and the investigation of the call involving the teenager, and that she placed both reports in Eubanks's box during the early morning hours of October 6 before the DHR office opened at 7:30 a.m. DHR intake logs and building logs show Wilson's arrival and departure from the building. However, Eubanks testified that she never saw Wilson's report on M.S.
Wilson thereafter had no further involvement in M.S.'s case. She did not hear anything further about M.S. until she was informed on October 21, 2007, that he had died on that date. It is undisputed that Wilson's report should have triggered assignment of the call to an intake worker to obtain more detailed facts surrounding Levert's call to DHR and, thereafter, assignment of the case to a child-abuse-and-neglect ("CA/N") worker to investigate more fully Levert's allegations of the alleged abuse. It is also undisputed that no intake worker or CA/N worker was assigned to M.S.'s case immediately after Wilson's initial contact with the family as the on-call worker. After M.S.'s death, Eubanks assigned Henderson, an intake worker in Jefferson County, to undertake the intake process concerning M.S.'s case and assigned Walter, a CA/N worker in *478 Jefferson County, to undertake the CA/N investigation.
On May 30, 2008, Levert sued Wilson, Jones, Henderson, Walter, Eubanks, and numerous other DHR workers.1 Levert sued each DHR worker in her individual capacity, alleging that she had negligently failed to perform her mandatory duties in accordance with DHR's rules and regulations, as well as the laws of the State. The complaint also alleged that each DHR worker had acted willfully, maliciously, fraudulently, in bad faith, beyond her authority, or under a mistaken interpretation of the law, proximately causing M.S.'s death. Expert testimony indicates that M.S. died from injuries inflicted during the evening of October 20-21 and not from any injuries relating to the October 4 incident investigated by Wilson and Jones. McConico has been arrested and charged with capital murder in connection with M.S.'s death.
Levert contended in the trial court that Wilson and Jones neither completed an investigatory report nor turned it in to Eubanks, who has stated that she "did not see [the report]." Levert also contended that Eubanks failed to make a timely assignment of an intake worker and a CA/N worker to M.S.'s case and that Henderson and Walter, who were assigned to the case after M.S.'s death, failed to complete timely investigations. Levert further contends that any investigation DHR conducted would have, or should have, uncovered the facts that McConico, who was reported to be a drug user and drug dealer who had also been previously charged with child abuse, was alone with M.S. for 12 or more hours a day and that both the mother and McConico were addicted to cocaine, heroin, marijuana, ecstacy, and other drugs.
Wilson, Jones, Henderson, Walter, and Eubanks all filed motions for a summary judgment arguing that they were immune from liability on the basis of State-agent immunity. Levert contended that, by their willful deviations from DHR policy, Wilson, Jones, Henderson, Walter, and Eubanks waived any State-agent immunity they may have otherwise had. On January 26, 2010, the trial court denied their motions for a summary judgment, and they petitioned for writs of mandamus.
Ex parte Yancey,"`"While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis,
(Ala. 1996). . . . 689 So.2d 794 "` "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.' Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc.,
(Ala. 1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 682 So.2d 402 (Ala. 1996), Fuqua v. Ingersoll-Rand Co., 675 So.2d 397 (Ala. 1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 591 So.2d 486 *479 (Ala. 1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 603 So.2d 981 (Ala. 1998). 719 So.2d 185 "` "An appellate court reviewing a ruling on a motion for summary judgment will, de. novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp.,
(Ala. 1991), Boland v. Fort Rucker Nat'l Bank, 577 So.2d 1278 (Ala. 1992), Rome v. Isbell, 599 So.2d 595 (Ala. 1992)."` 599 So.2d 35 "Ex parte Turner,
, 840 So.2d 132 135 (Ala. 2002) (quoting Ex parte Rizk,, 791 So.2d 911 912-13 (Ala. 2000)). A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: ` "(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court."` Ex parte Nail,, 879 So.2d 541 543 (Ala. 2003) (quoting Ex parte BOC Group, Inc.,, 823 So.2d 1270 1272 (Ala. 2001))."
"In Ex parte Cranman,(Ala. 2000), a plurality of this Court re-stated the test for determining when a State employee is entitled to State-agent immunity: 792 So.2d 392
"`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
"`(2) when the State agent acts willfully, maliciously, fraudulently, in *480 bad faith, beyond his or her authority, or under a mistaken interpretation of the law.'
"
"Additionally, this Court has stated:
"`This Court has established a "burden-shifting" process when a party raises the defense of State-agent immunity. Giambrone v. Douglas,
"Ex parte Estate of Reynolds,
Jones and various DHR supervisory personnel all testified that a "shadow worker" was assigned to observe another worker performing a certain task as a type of training exercise and that a shadow worker did not have the same responsibilities as did the worker who was being observed. The only testimony Levert produced to indicate that Jones had a duty to turn in the same report as did Wilson was Wilson's statement that she thought Jones would have had the same duties she did and the statement by Levert's expert witness, a former DHR employee, that any child-welfare staff worker had a duty to follow all DHR policy, including the policy that all on-call reports were to be turned in before the beginning of the next business day. This testimony ignores the fact that Jones shadowed Wilson only as far as Wilson's interview with the mother at her workplace. Both Jones and Wilson testified that at that point Wilson told Jones she could go home and that Jones neither *481 accompanied Wilson and the mother back to the mother's house to retrieve the hospital records nor accompanied Wilson back to the DHR office to prepare and to turn in the on-call report. Wilson undertook the preparation of the on-call report by herself; Jones did not assist in its preparation or undertake to turn the report in to Eubanks. Jones clearly had no involvement in the point of dispute in this case — whether a report of the on-call investigation of M.S. was turned in to the supervisor who would have been responsible for assigning other workers to further investigate the incident upon receipt of the report. By that time, Wilson had terminated Jones's association with the investigation.
Jones demonstrated that Levert's claims arise from a function that would entitle her to State-agent immunity, i.e., "(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. . . ."Ex parte Cranman,
Eubanks contends that because she never saw Wilson's report she cannot be held responsible for failing to assign an intake worker and a CA/N worker to investigate Levert's allegations of abuse before M.S.'s death. Consequently, it is undisputed that she made no such assignment before M.S.'s death. Henderson testified that Eubanks assigned her to complete the in-take process on M.S. after he had died and that she had never heard of M.S. before that time. Henderson further testified that Eubanks gave her notes that she was told had been written by Wilson and that Eubanks instructed her to enter those notes into her intake report. Henderson said she did as instructed, although she had not seen the notes before M.S.'s death and she never saw the report Wilson said she turned in to Eubanks. *482
Walter testified that Eubanks assigned her to complete the CA/N investigation on M.S. after he had died and that she had never heard of M.S. before that time. Walter also testified that Eubanks gave her notes that she was told had been written by Wilson and that Eubanks instructed her to enter those notes into her CA/N investigation report. Like Henderson, Walter said she did as she had been instructed, although she had not seen the notes before M.S.'s death and she never saw the report Wilson said she turned in to Eubanks.
The only testimony Levert produced to indicate that Henderson or Walter had a duty to M.S. before his death was the statements by Levert's expert witness that any child-welfare staff worker had a duty to follow all DHR policy, including the policy that intake and CA/N reports were to be completed within a specified period. This testimony assumed that Wilson's report had been properly turned in and acted upon and ignores the factual dispute that surrounds that report; it also assumes that assignments to Henderson and Walter preceded M.S.'s death, contrary to the undisputed evidence. Both Henderson and Walter testified that they had no knowledge about M.S. or the report of alleged abuse until after M.S.'s death, when they were assigned to be workers on his case. Clearly, Henderson and Walter were both complete strangers to any investigation of M.S. before his death.
Both Henderson and Walter demonstrated that Levert's claims arise from a function that would entitle each of them to State-agent immunity, i.e., "(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. . . ." Cranman,
Wilson adamantly insists that she turned in her on-call report concerning her initial investigation of Levert's report of alleged abuse of M.S.; Eubanks just as adamantly insists that she never saw the report. This discrepancy clearly presents a genuine issue of material fact. Wilson testified that she placed her report on the teenager whose case she investigatedand her report on the investigation of M.S. in Eubanks's inbox before she left the DHR office shortly before 2:00 a.m. on October 5. She stated that she clipped the two reports together before she placed them into the box. Wilson said she knew that the teenager's case had been properly further investigated based upon her initial report and that she did not understand why Eubanks had not received her report on M.S. as well. If the jury believes Wilson and disbelieves Eubanks, the jury could conclude that Wilson did turn in the report and that Eubanks misplaced or mishandled it after Wilson turned it in. Furthermore, both Henderson and Walter testified that Eubanks instructed them to enter notes from Wilson into the reports they were completing after M.S.'s death. From that testimony, the jury could conclude that Eubanks had not only Wilson's notes before M.S.'s death, but also Wilson's report. Such factual disputes cannot be resolved at the summary-judgment stage of the proceedings.
Eubanks demonstrated that Levert's claims arise from a function that would entitle her to State-agent immunity, i.e.,
Cranman,"(2) exercising . . . her judgment in the administration of a department or agency of government, including . . . examples such as:
. . . .
"(d) . . ., 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. . . ."
As previously discussed, Wilson adamantly testified that she turned in her on-call report concerning her initial investigation of Levert's report of alleged abuse of M.S.; Eubanks just as adamantly testified that she never saw the report. This discrepancy clearly presents a genuine issue of material fact. If the jury believes Wilson's testimony that she turned in the report on M.S. with her report on the teenager whose case she also handled while on call on the night of October 5, 2007, and disbelieves Eubanks, the jury could conclude that Wilson turned in the report and that Eubanks was responsible for the failure to further investigate that followed. Likewise, as previously noted, testimony from Henderson and Walter indicating that Eubanks instructed them to enter Wilson's notes into their reports after M.S.'s death supports an inference that Wilson had turned in the report and that Eubanks misplaced or mishandled it. However, if the jury believes Eubanks's testimony that she never saw Wilson's report and, thus, never had any reason to know that further investigation into Levert's allegations was necessary, the jury could conclude that Wilson's failure to turn in her report or her mishandling of the report in the process of turning it in resulted in the failure to further investigate Levert's allegations of abuse. We reiterate that such factual disputes cannot be resolved at the summary-judgment stage of the proceedings.
Wilson demonstrated that Levert's claims arise from a function that would entitle her to State-agent immunity, i.e., "(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. . . ."Cranman,
1090762 — PETITION GRANTED AS TO JONES, HENDERSON, AND WALTER AND DENIED AS TO EUBANKS; WRIT ISSUED.
1090781 — PETITION DENIED.
COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.