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IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA ) ) ) ) ) ) Plaintiff, ) ) vs. ) ) DR. VISTASP M. KARBHARI; DR. AMY ) ) BISHOP, a/k/a AMY BISHOP ) ANDERSON; and JAMES ANDERSON, ) ) ) Defendants. ) ) SAMMIE LEE DAVIS, as Personal Representative of THE ESTATE OF DR. MARIA RAGLAND DAVIS, deceased,
CIVIL ACTION NO. : CV-11-900037
******************** ) ) ) ) ) ) ) Plaintiff, ) ) vs. ) ) DR. VISTASP M. KARBHARI; DR. AMY ) ) BISHOP, a/k/a AMY BISHOP ) ANDERSON; and JAMES ANDERSON, ) ) ) Defendants. ) ) DR. JACQUELINE U. JOHNSON, as Personal Representative of THE ESTATE OF DR. ADRIEL D. JOHNSON, SR., deceased,
CIVIL ACTION NO. : CV-11-900038
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT KARBHARI’S MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................................ii INTRODUCTION ............................................................................................................. 1 STATEMENT OF UNDISPUTED FACTS .................................................................... 4 LEGAL ARGUMENT AND CITATIONS TO AUTHORITY................................... 12 I. DR. KARBHARI HAD NO DUTY UNDER ALABAMA LAW TO PROTECT THE DECEDENTS FROM THE CRIMINAL ACTS OF DR. BISHOP................................... 12 A. B. C. II. Dr. Karbhari Did Not Know That Dr. Bishop Planned to Murder the Decedents. ................................................................................................... 13 Dr. Karbhari Did Not Have Specialized Knowledge That Dr. Bishop Planned to Murder the Decedents. .......................................................... 17 Dr. Karbhari Possessed No Information That Dr. Bishop Posed an “Imminent Probability of Harm” to the Decedents. .............................. 18
DR. KARBHARI IS ENTITLED TO STATE-AGENT IMMUNITY. ............................. 20 A. B. The Emergency Procedures Handbook Did Not Impose Mandatory Duties on Dr. Karbhari. ............................................................................ 22 The Psychological Crisis Section Required Dr. Karbhari to Exercise Judgment and Discretion Before Reporting Dr. Bishop to the Police.. 25
DR. KARBHARI DID NOT CAUSE THE DECEDENTS’ DEATHS. ............................ 30
CONCLUSION ................................................................................................................ 31 CERTIFICATE OF SERVICE ...................................................................................... 33
TABLE OF AUTHORITIES Cases Bailey v. Bruno’s, Inc., 561 So. 2d 509 (Ala. 1990) ......................................................... 18 Byrd v. Commercial Credit Corp., 675 So. 2d 392 (Ala. 1996)........................................ 31 Carroll v. Hammett, 744 So. 2d 906 (Ala. 1999)........................................................ 28, 30 Carroll v. Shoney’s, Inc., 775 So. 2d 753 (Ala. 2000) ................................................ 13, 15 City of Birmingham v. Sutherland, 834 So. 2d 755 (Ala. 2002) ....................................... 21 Ex parte Blankenship, 806 So. 2d 1186 (Ala. 2000) ................................................... 27, 30 Ex parte Butts, 775 So. 2d 173 (Ala. 2000)....................................................................... 22 Ex parte City of Montgomery, 758 So. 2d 565 (Ala. 1999) ........................................ 21, 23 Ex parte Cranman, 792 So. 2d 392 (Ala. 2000).................................................... 20, 21, 26 Ex parte Estate of Reynolds, 946 So. 2d 450 (Ala. 2006)................................................. 21 Ex parte Hayles, 852 So. 2d 117 (Ala. 2002).................................................................... 20 Ex parte Kennedy, 992 So. 2d 1276 (Ala. 2008)......................................................... 22, 23 Ex parte Randall, 971 So. 2d 652 (Ala. 2007) ............................................................ 26, 30 Ex parte S. Baldwin Reg’l Med. Ctr., 785 So. 2d 368 (Ala. 2000) ................................... 15 Ex parte Spivey, 46 So. 2d 322 (Ala. 2002) ................................................................ 27, 30 Finley v. Patterson, 705 So. 2d 826 (Ala. 1997)......................................................... 18, 19 Giambrone v. Douglas, 874 So. 2d 1046 (Ala. 2003)........................................... 22, 24, 25 Gooden v. City of Talladega, 966 So. 2d 232 (Ala. 2007)................................................ 31 Hail v. Regency Terrace Owners Ass’n, 782 So. 2d 1271 (Ala. 1999)............................. 18 Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala. 1984) .................................................. 18 Howard v. City of Atmore, 887 So. 2d 201 (Ala. 2005)........................................ 28, 29, 30 Mobile City Lines, Inc. v. Proctor, 130 So. 2d 388 (1961) ............................................... 30
Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368 (Ala. 1986)...................................... 13 Nail v. Jefferson County Truck Growers Ass'n, Inc, 542 So. 2d 1208 (Ala. 1988). ......... 19 New Addition Club, Inc. v. Vaughn, 903 So. 2d 68 (Ala. 2004) ..................... 12, 13, 14, 15 Parham v. Taylor, 402 So. 2d 884 (Ala. 1981) ................................................................. 13 State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834 (Ala. 1998) .................................. 12 Webster v. Church’s Fried Chicken, Inc. 575 So. 2d 1108 (Ala. 1991) ........................... 18 Whataburger, Inc. v. Rockwell, 706 So. 2d 1220 (Ala. Civ. App. 1997).......................... 19 Wilder v. Sigma Nu Fraternity, Inc., 390 Fed. Appx. 910 (11th Cir. 2010) ............... 15, 19
INTRODUCTION Plaintiffs have asserted claims against an innocent man. Although it is understandable that Plaintiffs seek to blame someone for the tragedy of February 12, 2010, the blame lies solely at the feet of the confessed murderer, Dr. Amy Bishop. Continuation of this case against Dr. Karbhari can no longer be justified. From the very outset of this case, Plaintiffs’ central allegation has been that Dr. Karbhari, along with former President Dr. David Williams, their staff, and UAHuntsville police, knew that Dr. Bishop was a danger to others based on their response to her request to meet after her tenure denial. For example, on July 21, 2011, Plaintiffs sought to avoid dismissal by claiming: Months before the massacre, Defendant Karbhari and former UAH President, Dr. David Williams, ran out of the back of Shelbie King Hall protected by two armed police officers in order to flee a possible confrontation with Defendant Bishop over the denial of her tenure. Their flight was likely recorded by UAH security cameras. In fact, counsel for Plaintiffs went even further in the hearing on the Motion to Dismiss, claiming that “it did come to us through good sources, and has come to us again through even better sources, eyewitness reports that police were called and that there was protection given.” Plaintiffs’ counsel went on to claim that UAHuntsville “thought the crisis was severe enough they needed armed guards to run out of the back of the building and protect the president of the university.” Counsel even claimed that “there is a video of that – of the two officials with the university running out the back door.”
Discovery revealed that there is no such video and Plaintiffs’ only “source” was the confessed murderer, Dr. Bishop. Although it is self-evident that Dr. Bishop lacks any credibility whatsoever, even assuming her statements were admissible and true,1 Plaintiffs’ claims against Dr. Karbhari still fail as a matter of law. In fact, through the efforts of nonparty UAHuntsville to uncover all potential records relating to this alleged incident, discovery has revealed that the centerpiece of Plaintiffs’ case was a nonevent. Here are the uncontested facts relating to this incident: On November 12, 2009, a full three months before the shooting, Dr. Bishop received a letter from Dr. Williams informing her that her final appeal for tenure had been denied. Dr. Bishop called the President’s office, but was advised that he was unavailable. Dr. Bishop told the President’s assistant that she would come to the office and wait. The normal practice in the President’s office at that time was for UAHuntsville police to be informed of a potentially tense meeting such as a termination or, in
Dr. Karbhari disputes each of the allegations Dr. Bishop makes about him in her purported Affidavit and preserves all objections to its admissibility should Plaintiffs actually offer it as evidence in this case. In addition to her lack of credibility, Dr. Bishop states that she lacks memory of specific events and that her mental condition was such that she “was out of touch with reality.” Much of her alleged testimony is simply outlandish. Concerns have also been raised about the manner in which it was obtained and notarized that cast further doubt on its admissibility. For these reasons, as well as the Court’s prior Orders regarding Dr. Bishop’s Fifth Amendment right against self-incrimination, the Affidavit is not being introduced as an exhibit to this Motion. These concerns do not impact the ripeness of this Motion because even if Dr. Bishop’s Affidavit were admitted and even if it were assumed to be true, Dr. Karbhari would still be entitled to summary judgment.
this case, the denial of tenure. Accordingly, UAHuntsville police were told that there may be a meeting with a professor who had been denied tenure. Less than an hour later, Mary Beth Walker, the Executive Assistant to the President, spoke with Dr. Bishop and was informed that Dr. Bishop would not be coming to the President’s office. Ms. Walker then informed the UAHuntsville police that the professor was not coming and “the danger situation is over” and “we don’t need that safety issue anymore.” Accordingly, Plaintiffs’ entire case against Dr. Karbhari rests on the mere fact that a potentially contentious meeting three months before the shooting never actually occurred. Although the evidence is undisputed that Dr. Karbhari was not told that Dr. Bishop had sought a meeting with Dr. Williams on November 12, 2009, what could have been done if he had been told? Was he supposed to call the police and ask them to arrest Dr. Bishop for failing to show up for a meeting? If the police had been told, what were they to do? Arrest her for being upset about the denial of tenure? How could anyone be expected to predict, based on her failure to attend a meeting, that Dr. Bishop would murder her colleagues three months later? How could anyone predict that Dr. Bishop’s reaction to being denied tenure would be to murder the three professors who voted for her? Plaintiffs’ claims against Dr. Karbhari go well beyond the realm of speculation. Based on this evidence, Dr. Karbhari is entitled to summary judgment for three reasons: First, Dr. Karbhari had no legal duty to protect the Decedents from the criminal acts of Dr. Bishop. Second, Dr. Karbhari is entitled to State-agent immunity. Third, Dr. 3
Karbhari’s alleged negligence was not the cause of the Decedents’ deaths. Further discovery will not change these conclusions. STATEMENT OF UNDISPUTED FACTS Dr. Karbhari began his employment with UAHuntsville as Provost and Executive Vice President of Academic Affairs in September 2008.2 At that time, the tenure review process was already underway for Dr. Bishop.3 By the time the tenure issue reached Dr. Karbhari, Dr. Bishop’s colleagues and numerous faculty committees had already provided their opinions about her. According to the information provided to Dr. Karbhari, Dr. Bishop was denied tenure because of her academic performance, such as her “low research productivity at UAH” and the fact that “she has directed no doctoral students.”4 The decision was not unanimous. The Chair of the Biology Department, Dr. Gopi Podila, strongly supported the award of tenure. Although he was Dr. Bishop’s immediate supervisor, and likely would have been the point of contact for any complaints about her, he was her strongest advocate.5 Dr. Podila disagreed with the recommendation of the tenure committee and argued that Dr. Bishop should be granted tenure based on her “record of professional performance at UAH, and the potential she holds.”6
2 3 4 5 6
Ex. 1 (Karbhari Aff.) ¶ 1. Ex. 1 (Karbhari Aff.) ¶ 2. Ex. 2 (UAH0000941-UAH0000943). Ex. 1 ( Karbhari Aff.) ¶ 2. Ex. 3 (UAH0000920-UAH0000922).
Likewise, Dr. Podila’s supervisor, Dr. John Fix, the Dean of the College of Science, recommended tenure be granted.7 He noted that Dr. Bishop had: “done an acceptable job in teaching,” “created a productive lab,” and “been involved in several significant forms of campus service.”8 He did note, however, that “[t]he results so far are solid, though not overwhelming.”9 Dr. Adriel D. Johnson, Sr. also supported Dr. Bishop’s bid for tenure.10 In a September 25, 2009 memorandum to another member of the tenure review committee, Dr. Johnson expressed his belief that Dr. Bishop should be granted tenure based, in part, on their “professional interactions in the Department of Biological Sciences and the College of Science,” her “positive” student evaluation scores and comments, and the fact that “Dr. Bishop has been an enthusiastic participant in her service activities.”11 Dr. Maria Ragland Davis was another supporter of Dr. Bishop’s tenure and promotion.12 On May 1, 2009, she wrote Dr. Karbhari a letter on behalf of Dr. Bishop’s tenure appeal.13 Although she thought Dr. Bishop was “a bit unconventional,” Dr. Davis attempted to rally her colleagues to also express their support of Dr. Bishop and “their desire to see her stay.”14 She praised Dr. Bishop’s “no-nonsense” teaching style,
7 8 9
Ex. 4 (UAH0000705-UAH0000707). Id. at UAH0000706-UAH0000707. Id. at UAH0000707. Ex. 1 ( Karbhari Aff.) ¶ 3. Ex. 5 (DAVIS and JOHNSON 000057). Ex. 1 ( Karbhari Aff.) ¶ 3. Ex. 6 (UAH0001242-UAH0001243). Id.
10 11 12 13 14
complimented her for working “tirelessly,” and thought she was “able to work miracles” for her students.15 In all of the documentation related to Dr. Bishop’s tenure review, which was reviewed by several different individuals and committees and then again as part of her appeal, there was not a single concern raised about her mental stability, report of any threats or harassment, or mention of any potential for violent behavior.16 Nor did anyone ever informally advise Dr. Karbhari of any such concerns.17 Rather, based purely on the conclusion that her academic work did not satisfy the standard for awarding tenure, on November 10, 2009, then-President David Williams sent Dr. Bishop a letter advising her of the final decision not to grant her tenure or promotion.18 At 3:45 PM on November 12, 2009, after talking with Dr. Podila and Dean Fix and after a 12 second call to the Provost’s office, Dr. Bishop called the office of the President seeking a meeting with Dr. Williams regarding her tenure denial.19 She spoke with Caroline Mandel, an administrative assistant to the President, and told her that she had received a letter from Dr. Williams and wanted to meet.20 Ms. Mandel informed Dr. Bishop that Dr. Williams was not available, but Dr. Bishop responded that she would
15 16 17 18 19 20
Id. Ex. 1 (Karbhari Aff.) ¶ 4. Ex. 1 (Karbhari Aff.) ¶ 4. Ex. 7 (UAH0000863). Ex. 8 (Spreadsheet of Telephone Records). Ex. 9 (Mandel Aff.) ¶¶ 3-4.
come and wait in the office.21 Ms. Mandel documented this call with a note that said: “Jack Fix, Dr. Padila [sic], “mis-communicated, misunderstanding.”22 Ms. Mandel was then a recent college graduate and had only been working in that job for about one month.23 After the phone call from Dr. Bishop, Ms. Mandel spoke with Mary Beth Walker, the Executive Assistant to the President, regarding Dr. Bishop’s request to come and wait in the office.24 Ms. Mandel was concerned that she did not know how she would persuade Dr. Bishop to leave the office if she came over.25 She “was annoyed, but not scared.”26 At that time, the normal practice in the President’s office was to notify UAHuntsville police if there was going to be a potentially tense situation, such as a meeting with an employee regarding their job being terminated.27 In accordance with this policy, and because of the concern raised by Ms. Mandel, the UAHuntsville police were informed that there might be a meeting with a professor who had been denied tenure.28
21 22 23 24 25 26 27 28
Ex. 9 (Mandel Aff.) ¶ 5. Ex. 9 (Mandel Aff.) ¶ 6; Ex. 10 (UAH0002363). Ex. 9 (Mandel Aff.) ¶¶ 1-2. Ex. 9 (Mandel Aff.) ¶ 7. Ex. 9 (Mandel Aff.) ¶ 7. Ex. 9 (Mandel Aff.) ¶ 7. Ex. 11 (Walker Aff.) ¶ 4.
Ex. 11 (Walker Aff.) ¶ 4. Ms. Walker assumed that, in response to such notice, UAHuntsville police would send someone to be “hanging around in a [ ] concealed spot.” Id. ¶ 5. In actual practice, however, UAHuntsville police did not dispatch anyone to the scene based on notice of a potentially tense meeting. Ex. 12 (Gailes June 25, 2013 Aff.) ¶ 5. Rather, the UAHuntsville police would have only responded if they were subsequently informed that someone had become concerned about their safety. Id. Because there are no records of any police officer being dispatched to the scene and no police officer recalls providing security to Dr.
At 3:58 PM, about six minutes after her call with Ms. Mandel ended, Dr. Bishop called Dr. Debra Moriarity.29 Dr. Bishop advised that she was planning to go discuss her appeal with then President David Williams and/or Dr. Karbhari.30 During this call, Dr. Bishop said: “My career is over. I might as well kill myself.”31 As “this type of comment was consistent with Dr. Bishop’s dramatic personality,” Dr. Moriarity “did not think she was actually suicidal and did not interpret her comment to be an actual threat of suicide.”32 Dr. Bishop advised Dr. Moriarity that “her children were in the car with her and that she needed to take care of them before she went into Shelbie King Hall.”33 Dr. Moriarity “asked Dr. Bishop to call [her] back after she had dropped off her children.”34
Karbhari, Dr. Williams, or their staff, the clear inference is that nobody expressed any concerns about their safety to the police. Ex. 8 (Spreadsheet of Telephone Records); Ex. 13 (Moriarity May 5, 2011 Aff.) ¶ 5. Dr. Moriarity thought that these discussions occurred much earlier in 2009. Dr. Moriarity testified: “The conversations in questions occurred, to the best of my recollection, in or around April or May of 2009.” Ex. 13 (Moriarity May 5, 2011 Aff.) ¶ 5. Because calls from the parking lot would have been made from Dr. Bishop’s cell phone, as confirmed by Dr. Moriarity’s testimony, id. ¶ 6, those records are the best evidence to determine the actual date of the conversations. Those records reveal that the only day in 2009 that Dr. Bishop called Dr. Moriarity from her cell phone was November 12, 2009. Ex. 14 (Dr. Bishop Cell Phone Records) at 12. Likewise, the only day that Dr. Bishop called the President’s office was November 12, 2009. Id. Therefore, the only possible date that Dr. Bishop could have had these discussions with Dr. Moriarity was November 12, 2009.
30 31 32 33 34 29
Ex. 13 (Moriarity May 5, 2011 Aff.) ¶ 6. Ex. 13 (Moriarity May 5, 2011 Aff.) ¶ 7. Ex. 13 (Moriarity May 5, 2011 Aff.) ¶ 8. Ex. 13 (Moriarity May 5, 2011 Aff.) ¶ 9. Ex. 13 (Moriarity May 5, 2011 Aff.) ¶ 9.
At approximately 4:20 p.m., Dr. Bishop once again called Ms. Mandel and reiterated her request to see the President.35 Ms. Mandel advised Dr. Bishop again that Dr. Williams was not available.36 Ms. Mandel also informed Ms. Walker of this call.37 In response, Ms. Walker called Dr. Bishop at 4:28 PM and spoke to her for just over three minutes.38 During this call, Dr. Bishop informed Ms. Walker that she would not be coming to the President’s office.39 At 4:40 PM, less than an hour after Dr. Bishop’s initial call to Caroline Mandel, Ms. Walker informed the UAHuntsville police as follows: . . . Chief Gailes or somebody was going to be around Madison Hall in case we had an upset professor coming over because of her tenure decision. . . . Tell the Chief that she is not coming over and that the danger situation is over and he does not need to have someone over here . . . we don’t need that safety issue anymore.40 A search of the Computer Aided Dispatch Record Management System contains no records of any dispatch to the President’s office or relating to Dr. Bishop that day.41 In fact, there are no dispatch records of any calls relating to complaints about Dr. Bishop prior to February 12, 2010.42 The fact that UAHuntsville police were never actually
35 36 37 38 39 40
Ex. 9 (Mandel Aff.) ¶ 10; Ex. 8 (Spreadsheet of Telephone Records). Ex. 9 (Mandel Aff.) ¶ 10. Ex. 9 (Mandel Aff.) ¶ 10. Ex. 11 (Walker Aff.) ¶ 7; Ex. 8 (Spreadsheet of Telephone Records). Ex. 11 (Walker Aff.) ¶ 7.
Ex. 15 (Recording of November 12, 2009 Call to UAHuntsville Police Dispatch); Ex. 11 (Walker Aff.) ¶ 8. Ex. 16 (Sisco Aff.) ¶ 6. Ex. 16 (Sisco Aff.) ¶ 9.
dispatched to respond to a situation involving Dr. Bishop is confirmed by the Affidavits from thirteen different UAHuntville police officers answering specific questions posed by Plaintiffs’ counsel.43 After talking with Ms. Walker, Dr. Bishop called Dr. Moriarity back. Dr. Moriarity observed that “she had calmed down considerably and that she was certainly not suicidal.”44 Dr. Bishop told Dr. Moriarity “they won’t let me see them” and “they told me not to come up.”45 She said, “They act like I am going to walk in and shoot somebody.”46 Dr. Moriarity interpreted this to be “just a figure of speech.”47 Dr. Moriarity subsequently called Dr. Karbhari and relayed Dr. Bishop’s comment: “My career is over. I might as well kill myself.”48 Dr. Karbhari asked if Dr. Bishop was okay and whether Dr. Moriarity thought she would harm herself.49 Dr. Moriarity responded, “No. She is calmed down now.”50 Dr. Moriarity relayed her
thoughts that Dr. Bishop was just very unhappy with the tenure process, but that she was not going to actually harm herself.51 Dr. Moriarity did not tell Dr. Karbhari about Dr.
Ex. 17 (Beavers Aff.); Ex. 18 (Beswick Aff.); Ex. 19 (Brady Aff.); Ex. 20 (Culp Aff.); Ex. 21 (Gailes June 21, 2013 Aff.); Ex. 22 (Holland Aff.); Ex. 23 (Jarrett Aff.); Ex. 24 (Lang Aff.); Ex. 25 (Malcolm Aff.); Ex. 26 (McLaughlin Aff.); Ex. 27 (Sinclair Aff.); Ex. 28 (Sisco May 31, 2013 Aff.); Ex. 29 (Stolz Aff.).
44 45 46 47 48 49 50 51
Ex. 13 (Moriarity May 5, 2011 Aff.) ¶ 10. Id. ¶ 11. Id. ¶ 11. Id. ¶ 11. Id. ¶ 12. Id. ¶ 13. Id. ¶ 13. Id. ¶ 13.
Bishop’s comment that the secretary “acted like she was going to shoot somebody,” as she “thought this was just a figure of speech.”52 Dr. Karbhari was never told of Dr. Bishop’s call to the President’s office or that the UAHuntsville police had been alerted of a potentially tense meeting.53 In fact, Dr. Karbhari never received any information suggesting that anyone was afraid of Dr. Bishop or that she had made any threats of violence.54 Dr. Karbhari was not aware that Dr. Bishop possessed or had access to a weapon, that she had been going to a shooting range, or that she had a history of violence.55 Dr. Karbhari strongly disputes Plaintiffs’ allegation that he, along with Dr. Williams, “ran out of the back of Shelbie King Hall protected by two armed police officers in order to flee a possible confrontation with Defendant Bishop.”56 As confirmed by Dr. Karbhari’s calendar, he was not even in the office at that time, but rather was at the airport that afternoon interviewing and vetting candidates for the position of Dean of the College of Engineering.57 The allegation is further undercut by the fact that Dr. Bishop did not contemporaneously relay her alleged observation to Dr. Moriarity.58 More
52 53 54 55 56 57 58
Ex. 13 ( Moriarity May 5, 2011 Aff.) ¶ 14. Ex. 11 (Walker Aff.) ¶ 9; Ex. 1 (Karbhari Aff.) ¶ 5. Ex. 1 (Karbhari Aff.) ¶ 6. Ex. 1 (Karbhari Aff.) ¶ 6. Ex. 1 (Karbhari Aff.) ¶¶ 7, 9. Ex. 1 (Karbhari Aff.) ¶ 9; Ex. 30 (UAH0010564).
Dr. Karbhari notes his dispute of Dr. Bishop’s Affidavit solely to ensure that there is no confusion in the record about what his position is. This is necessary because Plaintiffs’ counsel has, in the past, sought to attribute positions to Dr. Karbhari based on the procedural requirement that allegations must be assumed to be true. Despite the dispute over these facts, summary
importantly for purposes of this motion, during the three month period following November 12, 2009, Dr. Karbhari had no meetings or substantive contact with Dr. Bishop.59 Dr. Karbhari believed that Dr. Bishop had accepted the denial of tenure and was moving on with her career by looking for employment elsewhere.60 Likewise, the President’s office had no memorable interactions with her after November 12, 2009.61 Even after the shooting, on February 15, 2010, a criminal background check was performed on Dr. Bishop. It showed no criminal history.62 LEGAL ARGUMENT AND CITATIONS TO AUTHORITY I. DR. KARBHARI HAD NO DUTY UNDER ALABAMA LAW TO PROTECT THE DECEDENTS FROM THE CRIMINAL ACTS OF DR. BISHOP. To survive summary judgment, Plaintiffs must demonstrate that Dr. Karbhari had a legal duty to protect the Decedents from Dr. Bishop.63 The general rule in Alabama is that no such duty exists except in “the most extraordinary and highly unusual
judgment of the claims against Dr. Karbhari does not depend on a resolution of this factual dispute.
59 60 61 62 63
Ex. 1 (Karbhari Aff.) ¶ 11. Ex. 1 (Karbhari Aff.) ¶ 11. Ex. 9 (Mandel Aff. ¶ 11); Ex. 11 (Walker Aff.) ¶ 10. Ex. 16 (Sisco Aff.) ¶¶ 2-3.
“[T]he existence of a duty is a question of law to be determined by the trial judge,” New Addition Club, Inc. v. Vaughn, 903 So. 2d 68, 73 (Ala. 2004)) (quoting State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834, 839 (Ala. 1998)), and “[a] negligence action cannot be maintained without showing that the defendant owed the plaintiff a duty.” Id. at 76 (citation omitted).
circumstances.”64 To create a duty to protect, Plaintiffs must submit substantial evidence of each of the following three elements: (1) (2) “the particular criminal conduct must have been foreseeable;” “the defendant must have possessed ‘specialized knowledge’ of the criminal activity;” and “the criminal conduct must have been a probability.”65
The undisputed evidence does not support any of these three elements. A. Dr. Karbhari Did Not Know That Dr. Bishop Planned to Murder the Decedents.
The Alabama Supreme Court has repeatedly held that there is no duty to protect unless the defendant knew of the particular criminal conduct at issue. The best example of this requirement is Carroll v. Shoney’s, Inc.,66 in which the Court affirmed summary judgment on a claim brought by the representative of a murder victim who was killed by her husband because the plaintiffs failed to present substantial evidence that the particular criminal act of murder was foreseeable. In that case, the plaintiff presented evidence that the defendant knew that the husband had beaten, choked, and threatened his wife the night before the murder.67 In addition, the defendant personally witnessed the husband
Parham v. Taylor, 402 So. 2d 884, 886 (Ala. 1981). See also, Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1370 (Ala. 1986) (“It is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third party.”). New Addition Club, 903 So. 2d at 73 (quoting Carroll v. Shoney’s, Inc., 775 So. 2d 753, 756 (Ala. 2000)).
66 67 65
775 So. 2d 753. Id. at 754.
threaten his wife the night before the murder and tell her that he was going to “get her.”68 The night of the murder, the victim informed the defendant that she and her husband had been fighting and she was afraid to return to work.69 The defendant told the victim to come into work anyway and advised that, if the husband showed up, they would call the police.70 Despite these facts, the Alabama Supreme Court held that the defendant had no duty to protect the victim from the criminal acts of her husband, reasoning that the particular criminal conduct which occurred—murder—was not foreseeable.71 The Alabama Supreme Court held that: “The particular criminal conduct in this case was a murder . . . [T]here was no evidence . . . that any employee of [the defendant] was told, or reasonably should have foreseen, that [the husband] would enter the [defendant’s] restaurant and murder his wife.”72 Many other cases reinforce the requirement that the defendant know of the “particular” criminal conduct. For example, in New Addition Club, Inc. v. Vaughn,73 the plaintiff alleged that the defendant had a legal duty to protect the victim based on the defendant’s knowledge that the murderer was hot tempered, had brandished a shotgun, and had punched his girlfriend. The Alabama Supreme Court reversed judgment against
68 69 70 71 72 73
Id. Id. at 755. Id. Id. at 756-57. Id. 903 So. 2d 68, 75 (Ala. 2004).
the defendant based on its finding that he did not have a legal duty to protect the victim because the defendant did not know the criminal would commit the specific act of murder.74 Likewise, in Wilder v. Sigma Nu Fraternity, Inc.,75 the plaintiff sought to create a legal duty based on the defendants’ knowledge that the criminal was extremely hostile, had already engaged in one fight on the premises, possessed a knife, and was making death threats towards guests of a party. The Eleventh Circuit rejected this argument and affirmed summary judgment, holding that the “facts surrounding the fraternity member’s knowledge of the dangerousness of the situation do not indicate that they were aware of the probability of the specific harm that befell [plaintiff].”76 In light of the clear holdings of Carroll, New Addition, and Wilder, it is selfevident that Dr. Karbhari had no legal duty to protect the Decedents. No one ever told Dr. Karbhari that Dr. Bishop planned to murder the Decedents.77 In fact, the evidence against Dr. Karbhari pales in comparison to the evidence offered and rejected in Carroll, New Addition Club, and Wilder. Dr. Karbhari had no knowledge that Dr. Bishop had a history
Id. at 76 (“[N]othing suggests that the Club knew, or had reason to know, that Crenshaw would kill Mary. The ‘particular criminal activity, not just any criminal activity,’ must be foreseeable.”) (quoting Ex parte S. Baldwin Reg’l Med. Ctr., 785 So. 2d 368, 370 (Ala. 2000)).
75 76 77
390 Fed. Appx. 910 (11th Cir. 2010). Id. at 913.
Ex. 1 (Karbhari Aff.) ¶ 6; Am. Compls. at 6 (“Had Defendant Karbhari followed lifesafety and other mandatory regulations as required, the sworn officers in the UAH police force, who have direct access to the National Crime Information Center (“NCIC”), would have in the proper course investigated Bishop and discovered her prior criminal record of violence . . . .”).
of violence.78 Dr. Karbhari had no knowledge that Dr. Bishop had threatened violence against anyone.79 Dr. Karbhari had no knowledge that Dr. Bishop possessed a weapon.80 In fact, Plaintiffs’ allegations are based solely on the purported testimony of Dr. Bishop. Even assuming that her testimony were admissible and true, which it certainly is not, it would only prove that Dr. Bishop told Dr. Karbhari that she was suicidal months before the shooting and that Dr. Karbhari, along with Dr. Williams, hurriedly left Shelbie King Hall on the day Dr. Bishop wanted to meet about her tenure denial. With regard to Dr. Karbhari’s alleged knowledge that Dr. Bishop was suicidal, as explained by Dr. Moriarity’s testimony, Dr. Bishop had a “dramatic personality” and made such statements just to “garner some sympathy.”81 Based on this, and in conjunction with Dr. Moriarity’s assurance that Dr. Bishop did not plan to harm herself, there would have been no reason to respond to this information. Likewise, Dr. Karbhari’s alleged departure from Shelbie King Hall would not provide any supporting evidence to create a duty. Even if you ignore all of the contradictory evidence to Dr. Bishop’s testimony, it would only suggest that Dr. Karbhari exited the building because he was afraid of Dr. Bishop. As Dr. Bishop never made any threats to Dr. Karbhari, never made any threats to Dr. Williams’s staff, and never even showed up for the meeting, what could Dr. Karbhari have done in response? Even with
78 79 80 81
Ex. 1 (Karbhari Aff.) ¶ 6. Id. Id. Ex. 13 (Moriarity Aff.) ¶ 8.
such information, the particular criminal conduct which occurred—murder—was not foreseeable. There is not a single piece of evidence that would suggest that Dr. Karbhari was ever told or had any reason to suspect that Dr. Bishop might harm the Decedents in any way. Even if you assume that on November 12, 2009, Dr. Karbhari, Dr. Williams, and their staff were afraid of Dr. Bishop, that would not allow them to foresee that Dr. Bishop would murder the Decedents on February 12, 2010. Indeed, such a conclusion would have been completely irrational given their support of Dr. Bishop receiving tenure. How could anyone foresee that Dr. Bishop would murder the three people who actually voted in support of her receiving tenure? B. Dr. Karbhari Did Not Have Specialized Knowledge That Dr. Bishop Planned to Murder the Decedents.
Plaintiffs also fail to establish a legal duty to protect the Decedents because they have presented no evidence that Dr. Karbhari had specialized knowledge about Dr. Bishop. Despite all of the records produced in this case, including the E-mail of Dr. Karbhari, Dr. Bishop’s personnel file, and all of the documents relating to her denial of tenure and the subsequent appeal, there is not a single document that suggests that Dr. Karbhari received any warning that Dr. Bishop planned to murder her colleagues. Moreover, there is nothing to suggest that Dr. Karbhari had enough personal interaction to become privy to some specialized knowledge about her. Unlike the Decedents, who worked closely with Dr. Bishop and supported her receiving tenure, Dr.
Karbhari only had limited contact with her.82 None of his interactions with Dr. Bishop ever provided him any clues that Dr. Bishop planned to commit this heinous crime.83 Therefore, under Alabama law, he had no duty to protect. C. Dr. Karbhari Possessed No Information That Dr. Bishop Posed an “Imminent Probability of Harm” to the Decedents.
The third prong of establishing a legal duty to protect is proving that the murder must have been a probability. The Alabama Supreme Court has repeatedly held that there is no legal duty to protect unless a defendant possesses knowledge that there is an “imminent probability of harm” to the victim.84 The evidence in this case demonstrates that Dr. Karbhari had no knowledge that would suggest that there was an “imminent probability of harm” to the Decedents on February 12, 2010. Even assuming Dr. Bishop’s purported testimony to be true, Dr. Karbhari would have only possessed knowledge that Dr. Bishop was upset and claimed to be suicidal three months prior to the shooting. Plaintiffs’ lack of evidence is fully elucidated by examining a couple of cases that have found that there was sufficient evidence for a jury to find an imminent probability of
82 83 84
Ex. 1 (Karbhari Aff.) ¶ 11. Id. ¶¶ 12-14.
See Hail v. Regency Terrace Owners Ass’n, 782 So. 2d 1271, 1274-75 (Ala. 1999) (“stating that the Alabama Supreme Court “has rarely held that the danger to an invitee posed by the potential criminal act of a third person was so imminent that the premises owner should have foreseen the eventual consequence”); Finley v. Patterson, 705 So. 2d 826, 829 (Ala. 1997) (holding that the special-circumstances exception “arises only in the rare case when the person knows or has reason to know that acts are occurring or are about to occur on the premises that pose imminent probability of harm to an invitee”); Webster v. Church’s Fried Chicken, Inc. 575 So. 2d 1108, 1109 (Ala. 1991) (citing the “well-established rule” that plaintiffs must prove that there was an imminent probability of harm); Bailey v. Bruno’s, Inc., 561 So. 2d 509, 511 (Ala. 1990) (same); Henley v. Pizitz Realty Co., 456 So. 2d 272, 277 (Ala. 1984) (same).
harm: Nail v. Jefferson County Truck Growers Association, Inc.85 and Whataburger, Inc. v. Rockwell.86 Although subsequent decisions have recognized that these two cases have been overruled or significantly narrowed because they were decided under the scintilla rule,87 they do demonstrate the lack of evidence against Dr. Karbhari. In Nail, the defendant was aware that the feud between the criminal and the victim was escalating in the “weeks before the shootout,” the criminal told the defendant within a week of the shooting about the increasing tension, the victim’s mother warned the defendant just four days before the shooting that the criminal had threatened her son, and just three days before the shooting the defendant hired a security guard because of the potential for violence between the criminal and the victim.88 Likewise, in Whataburger, in the moments leading up to the criminals’ attack on the plaintiff, he actually requested several times that the defendant call the police, but the defendant failed to do so and, instead, instructed the group to “take it outside.”89 Without question, the allegations from Dr. Bishop that Dr. Karbhari had some information about her mental health three months before the shooting falls woefully short of the type of information that creates an “imminent probability of harm.” As there is no
85 86 87
542 So. 2d 1208 (Ala. 1988). 706 So. 2d 1220 (Ala.Civ.App. 1997).
The Alabama Supreme Court recognized in Finley, 705 So. 2d at 829 n.3, that Nail was decided under the “scintilla rule” which had since been abandoned by statute. With regard to Whataburger, the Eleventh Circuit recently stated: “we are doubtful about the viability of its assertion that debatable questions of foreseeability, and thus duty, are reserved for the jury in light of more recent Alabama case law.” Wilder, 390 Fed. Appx. at 912.
Nail, 542 So. 2d at 1211-1213. Whataburger, 706 So. 2d at 1222.
evidence of any escalation in Dr. Bishop’s conduct in the three months leading up to the shooting, there is not even a scintilla of evidence of an imminent probability of harm in this case. Because Dr. Karbhari had no duty to protect the Decedents against the criminal acts of Dr. Bishop, summary judgment is due to be granted. II. DR. KARBHARI IS ENTITLED TO STATE-AGENT IMMUNITY. Under the Cranman doctrine of 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 . . . exercising his or her judgment in the administration of a department or agency of government.”90 Thus, “Stateagent immunity protects state employees, as agents of the State, in the exercise of their judgment in executing their work responsibilities.”91 Plaintiffs allege that, “[a]s Provost, Defendant Karbhari was responsible for reviewing and evaluating the recommendations regarding tenure” and “was or should have been well informed of Bishop’s mental instability, harassment of and threats toward herself and others, if for no other reason than by the tenure evaluation process.”92 Plaintiffs further allege that Dr. Karbhari “was negligent, by, . . . using his own judgment and discretion . . . by not reporting Bishop’s condition.”93
90 91 92 93
Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000) (emphasis in original). Ex parte Hayles, 852 So. 2d 117, 122 (Ala. 2002). Am. Compls. ¶ 30. Id. ¶ 42.
Plaintiffs’ claims against Dr. Karbhari clearly arise from his exercise of judgment in executing his responsibilities as Provost of UAHuntsville. Therefore, “the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.”94 Given the law in Alabama on the legal duty to protect against the criminal acts of a third party, it is a legal impossibility for a state agent to act “willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority”95 by merely failing to predict that a third party will commit a criminal act. Stated differently, the negligent failure to foresee a future crime is not an intentional act. Thus, to satisfy their burden, Plaintiffs must prove that Dr. Karbhari actually knew of Dr. Bishop’s plan and then intentionally stood by as she committed the act of murder.96 There is not a shred of evidence suggesting that anyone other than Dr. Bishop knew of her evil plan. Accordingly, Plaintiffs attempt to shift the focus away from the murder and point instead to the alleged failure to follow the UAHuntsville Emergency Procedures Handbook three months before the murder. But, this alleged failure is completely
94 95 96
Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006). Id.
“Allegations of negligence are not sufficient to remove the immunity the City is provided for [an officer's] performance of a discretionary function.” City of Birmingham v. Sutherland, 834 So. 2d 755, 762 (Ala. 2002) (holding police officer’s conduct satisfied the Cranman standard of State-agent immunity because he was exercising discretion in effecting a warrantless arrest and, hence, the city could not be held liable; the plaintiff “failed to specifically allege, or to present any evidence tending to prove, that Officer Wooten's actions were taken in bad faith, or that his conduct was willful or malicious. The gist of the allegations made by Sutherland was that Officer Wooten negligently had exceeded his authority in effecting the arrest.”) (citing Ex parte City of Montgomery, 758 So. 2d 565, 570 (Ala. 1999)).
divorced from the actual cause of the Decedents death. Yet, even if this Court were to assume that the Decedents were somehow injured on November 12, 2009, Plaintiffs still cannot meet their burden of proving that Dr. Karbhari acted beyond his authority. A. The Emergency Procedures Handbook Did Not Impose Mandatory Duties on Dr. Karbhari.
Plaintiffs argue that Dr. Karbhari acted beyond his authority by failing to diagnose that Dr. Bishop was experiencing a severe psychological crisis and then failing to report that observation to the police as recommended in the UAHuntsville Emergency Procedures Handbook. The Alabama Supreme Court has found that a state-agent’s failure to comply with a checklist of detailed rules that do not require the exercise of discretion can provide substantial evidence that the agent acted beyond his authority and, thus, was not entitled to immunity.97 On the other hand, the Alabama Supreme Court has held that failures to follow general policies and procedures are protected by state-agent immunity. An examination of these cases and the Handbook demonstrates that Plaintiffs’ argument fails as a matter of law. In Ex parte Kennedy,98 the Court held that a training manual provided to law enforcement tactical officers did not constitute a “detailed set of rules or regulations” capable of demonstrating that state agents acted the beyond their authority. The plaintiff alleged that during a standoff with plaintiff’s decedent, the defendants violated rules and
“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.’” Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003) (quoting Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000)).
992 So. 2d 1276 (Ala. 2008).
regulations set forth in a training manual for tactical units.99 The Court rejected the plaintiff’s argument, reasoning that the manual was simply a “how-to” training guide. The Court reasoned that: . . . testimony that the training manual set forth “guidelines” and “procedures” and that it indicated what the tactical-unit team members “should do” in particular circumstances does not mean that the training manual was adopted as a set of binding rules and regulations strictly governing the tactical unit. Indeed, it is in the nature of a training manual to explain to an employee how to handle situations and to set forth guidelines for how an employee “should” conduct himself or herself. . . . Under these circumstances, we are unwilling to recognize the [ ] manual as a set of “detailed rules and regulations,” the violation of which will cause a State agent to lose his or her immunity from an action seeking money damages.100 Similarly, in Ex parte City of Montgomery,101 the plaintiffs contended that the defendant police officers were not entitled to State-agent immunity because they acted beyond their authority by detaining plaintiffs in a manner that violated the “Law Enforcement and Disabilities Manual.”102 Relying on the holding in Kennedy, the Court rejected plaintiffs’ theory that a training or “how-to” guide could also serve as a binding set of rules or regulations capable of invoking the beyond authority exception. Although the defendant officers did testify that they received training in the police academy on how to deal with citizens with disabilities with whom they might come into contact, such instruction or training could hardly be described as “detailed rules or regulations, such as those stated on a
Id. at 1283. Id. at 1286. 99 So. 3d 282 (Ala. 2012). Id. at 294.
100 101 102
checklist,” that imposed duties to be discharged by the defendant officers. The manual, itself, can best be described as a teaching tool for law-enforcement officers in dealing with disabled persons.103 In contrast, the Alabama Supreme Court’s decision in Giambrone v. Douglas104 is a case involving a mandatory set of explicit rules that governed how the defendant was to perform his specific job functions. In Giambrone, the athletic director of a high school explicitly instructed the defendant wrestling coach to follow a detailed set of rules in the performance of his coaching duties.105 The coach violated two of those rules: one rule prohibited the use of illegal headlocks (explicitly defined in the rule), and the other prohibited the coach from arranging “competitions between individuals whose physical abilities are widely disparate.”106 The plaintiff-student was injured when the coach, 29 years old and weighing approximately 200 pounds, performed an illegal headlock while engaged in a full-speed wrestling match with the student, who was 15 years old and weighed approximately 130 pounds. The Court held that these were “detailed rules or regulations” that removed the coach’s judgment in determining whether he should perform an illegal move during a “full speed challenge match” with his student, who was 14 years younger and weighed approximately 70 pounds less.107
103 104 105 106 107
Id. (internal citation omitted). 874 So. 2d 1046. Id. at 1053-54. Id. at 1054. Id. at 1055.
Unlike the mandatory rules considered in Giambrone, the Emergency Procedures Handbook does not dictate how Dr. Karbhari is to perform his duties as Provost of UAHuntsville. Rather, like the “how-to” training manuals analyzed in Kennedy and City of Montgomery, the Handbook merely provides general safety guidelines and suggestions to the entire UAHuntsville community on what to do in various emergency situations. UAHuntsville faculty, staff and students are merely encouraged to “become familiar” with the Handbook’s provisions. For example, in the event of a fire on campus the Handbook recommends to “[c]ontain the fire by closing doors and windows.”108 Certainly, Plaintiffs cannot seriously contend that UAHuntsville personnel should be held liable for acting “beyond authority” if, for example, he or she decided to exit a burning building rather than attempt to close the doors and windows. The same is true in this case. B. The Psychological Crisis Section Required Dr. Karbhari to Exercise Judgment and Discretion Before Reporting Dr. Bishop to the Police.
Even assuming, arguendo, that the Emergency Procedures Handbook contains rules or regulations that impose duties on UAHuntsville personnel, the Psychological Crisis page would have required Dr. Karbhari to exercise his personal judgment and discretion in making a subjective assessment of Dr. Bishop’s mental state. The Alabama Supreme Court has held on numerous occasions that such rules and regulations—which still require a state official to exercise personal judgment and discretion—are not the type of “detailed rules or regulations, such as those stated on a checklist,” capable of triggering the beyond authority exception to State-agent immunity.
Ex. 31 (EPH000001 – EPH000022) at 14.
In Ex parte Randall,109 the defendant was employed as a licensing consultant for the Department of Human Resources (“DHR”) and was charged with evaluating homeday-care providers to ensure they were in compliance with DHR’s minimum standards. One such minimum standard required that “[n]o medication . . . shall be administered without a written, signed authorization form from the child’s parent(s)/guardian(s).”110 The defendant discovered during her review of the day care’s records that there were no medical authorization forms on file.111 However, after being falsely assured by the day care that it was not administering medication to children in its care and was in compliance with the minimum standard, rather than concluding that the day care was in violation, the defendant indicated on the licensing-evaluation checklist that the medical authorization requirement was “not applicable.”112 The plaintiffs’ child later died due to an overdose of cough suppressant administered by the day care. The plaintiffs alleged that the defendant acted beyond her authority by improperly completing the licensingevaluation checklist. The Court disagreed, reasoning that the defendant: did not erroneously report an objective fact, such as whether a swimming pool was enclosed by a fence . . . A good case has been made that [the defendant] exercised poor judgment in the discharge of duties imposed upon her by statute. However, these circumstances are insufficient to deprive her of State-agent immunity under Cranman.113
109 110 111 112 113
971 So. 2d 652 (Ala. 2007). Id. at 654. Id. at 663. Id. Id. at 664.
Similarly, in Ex parte Blankenship114 the Alabama Supreme Court held that an Elmore County Board of Education policy requiring that “a student must be present at school the entire day in order to participate in extracurricular activities that day” did not remove the defendants’ authority and discretion to allow non-school members to participate in band activities.115 In Blankenship, the parents of a minor brought suit against a high school’s band director and principal after their 13-year-old daughter was statutorily raped by a 19-year-old man. Both were members of the same marching band at a public high school in Elmore County, although neither attended the high school. The parents alleged that the defendants acted beyond their authority by allowing the 19-yearold to participate in band activities when he was not a student at the high school. The Court disagreed, reasoning that: [T]he policy C.S. relies on does not limit the discretion of a principal and a band director in allowing students who do not attend their high school or nonstudents to participate in extracurricular activities of that school. . . . One with 20/20 hindsight might question the wisdom of Blankenship and Fryer’s decision to allow a person they thought was a student from a private school outside Elmore County to participate in the band activities and the wisdom of their failing to verify that he was a student at the private school he claimed to attend. State-agent immunity protects agents of the State in their exercise of discretion in educating students. We will not second-guess their decisions.116
114 115 116
806 So. 2d 1186 (Ala. 2000). Id. at 1189.
Id. at 1189. See also Ex parte Spivey, 46 So. 2d 322, 327, 333 (Ala. 2002) (explicit command in faculty handbook requiring that all safety “hazards should be removed or reported . . . immediately” was “not the type of ‘detailed rule or regulation’ that would remove a State agent’s judgment in the performance of required acts”; defendant was still required to exercise
In addition, and directly contrary to Plaintiffs’ contention that Dr. Karbhari acted beyond his authority, Howard v. City of Atmore117 found that an agency rule requiring an assessment of a person’s mental condition was legally incapable of triggering the beyond authority exception. In Howard, the plaintiff argued that the defendant jailer acted beyond authority by failing to comply with a police department rule requiring jailers to “[m]ak[e] checks of intoxicated persons, drug addicts, physical and mental health risks and suicidal risks every thirty minutes.”118 The plaintiff alleged that the defendant was aware of information that should have alerted him that the plaintiff’s decedent was a suicide risk.119 The Court disagreed, reasoning that “[w]hether an inmate is a ‘drug addict,’ a ‘physical or mental health risk,’ or a ‘suicide risk’ must be determined on a case-by-case basis, and necessarily requires the exercise of judgment in each case.”120 Plaintiffs allege that Dr. Karbhari knew or should have known based on “information, reports, and conclusions that Bishop was severely unstable” and experiencing a psychological crisis, and therefore acted beyond his authority by failing to
his judgment “in determining . . . when a safety hazard exists”); Carroll v. Hammett, 744 So. 2d 906, 911-12 (Ala. 1999) (holding that statute mandating that defendant principal “shall notify appropriate law enforcement officials when any person violates local board of education policies concerning . . . threatened physical harm to a person” did not remove principal’s discretion after learning of threat to plaintiff; “[i]n determining whether a student has violated one of the local board of education’s policies . . ., the principal is engaged in the performance of a discretionary function, because making that determination requires the principal to use his personal judgment.”) (internal quotation omitted) (emphasis omitted).
117 118 119 120
887 So. 2d 201 (Ala. 2003). Id. at 207. Id. Id. (emphasis in original).
report Dr. Bishop to the police.121 In addition to the lack of factual support for this claim, the actual text of the Psychological Crisis page demonstrates that Howard is applicable and that Dr. Karbhari would have been required to use his subjective judgment and discretion. First, the Psychological Crisis does not state that the police must be called every time someone even mentions suicide. Rather, it required Dr. Karbhari to determine whether Dr. Bishop was just being dramatic or whether she was making an actual, legitimate suicide threat. Such decisions inherently require subjective judgment. As none of Dr. Bishop’s colleagues, including the Decedents, ever reported that they thought she was suffering a psychological crisis, how could such a determination be considered nondiscretionary? In fact, Dr. Moriarity assured Dr. Karbhari that Dr. Bishop “was just very unhappy with the tenure process, but that she was not going to actually do anything.”122 Dr. Moriarity, who knew Dr. Bishop far better than Dr. Karbhari, believed that this statement by Dr. Bishop was merely consistent with her dramatic personality.123 Second, Plaintiffs allege that, “university personnel must notify University Police when a faculty member is experiencing psychological crisis.”124 However, under the plain text of the Psychological Crisis page this assertion is simply incorrect. It states: Faculty/Staff: A faculty/staff member experiencing a psychological crisis should be directed to the nearest hospital emergency room or call their family physician. If a faculty/staff member is experiencing a severe
121 122 123 124
Am. Compls. ¶¶ 37-40. Ex. 13 (Moriarity Aff.) ¶ 13. Id. ¶ 8. Am. Compls. at 2.
psychological crisis, contact the University Police for assessment and transport to the nearest hospital emergency room.125 Obviously, the determination of whether someone was experiencing a psychological crisis or a “severe” psychological crisis is a question of degree and is inherently subjective. It is self-evident that this multi-step analysis of Dr. Bishop’s mental status required multiple acts of judgment and discretion. As demonstrated by the Alabama Supreme Court’s holdings in Randall, Blankenship, Spivey, Hammett, and, most squarely on point, Howard, even if the Psychological Crisis section of the Emergency Procedures Handbook imposed duties on UAHuntsville personnel such as Dr. Karbhari, those duties necessarily required the exercise of judgment and discretion. Plaintiffs have fallen woefully short of satisfying their burden of proof that Dr. Karbhari acted beyond his authority. Therefore, the claims against Dr. Karbhari are barred by State-agent immunity. III. DR. KARBHARI DID NOT CAUSE THE DECEDENTS’ DEATHS. Dr. Karbhari is also entitled to summary judgment because the evidence does not support Plaintiffs’ theory of causation. Proximate cause is “the direct and immediate, efficient cause of the injury.”126 It is defined as “an act or omission that in a natural and
Ex. 31 (EPH000001 – EPH000022) at 11 (emphasis added). Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 224, 130 So. 2d 388, 394 (1961).
continuous sequence, unbroken by any new and independent causes, produces the injury and without which the injury would not have occurred.”127 Generally proximate cause is a question to be determined by the trier of the fact. Even so, the question of proximate cause may be decided by a summary judgment if there is a total lack of evidence from which the fact-finder may reasonably infer a direct causal relation between the culpable conduct and the resulting injury.128 In this case, there is no evidence of a direct causal link between Dr. Karbhari’s alleged failure to follow the Handbook and Dr. Bishop’s murder of the Decedents. In an attempt to establish some causal link, Plaintiffs allege the following with respect to causation: Had Defendant Karbhari performed his duties, the sworn officers in the UAH police force, who have direct access to the National Crime Information Center (“NCIC”), would have readily discovered Bishop’s prior criminal record of violence in the exercise of its responsibilities, confirmed her dangerous instability, and uncovered lies in her employment application to UAH.129 Yet, discovery has demonstrated that Plaintiffs’ theory of causation is incorrect because such a search would not have revealed any criminal history for Dr. Bishop. Thus, the sole cause of the Decedents’ death was Dr. Bishop. CONCLUSION Dr. Karbhari respectfully requests this Court grant summary judgment on the claims against him because (1) he was under no duty to protect the Decedents from the
Byrd v. Commercial Credit Corp., 675 So. 2d 392, 393 (Ala. 1996).
Gooden v. City of Talladega, 966 So. 2d 232, 239–40 (Ala. 2007) (internal quotations and citations omitted).
Am. Compls. ¶ 43.
criminal acts of Dr. Bishop; (2) Dr. Karbhari is entitled to State-agent immunity; and (3) he was not the proximate cause of the Decedents’ deaths.
Respectfully submitted on the 26th day of June, 2013.
/s/ Jay M. Ezelle Randal H. Sellers (ASB-3398-E56R) Jay M. Ezelle (ASB-4744-Z72J) Stephen A. Sistrunk (ASB-4229-E63S) STARNES DAVIS FLORIE LLP 100 Brookwood Place Seventh Floor Birmingham, AL 35209 (205) 868-6000 (Telephone) (205) 868-6099 (Facsimile) E-mail: firstname.lastname@example.org email@example.com firstname.lastname@example.org
CERTIFICATE OF SERVICE I hereby certify that on June 26, 2013, I electronically filed the foregoing with the Clerk of the Court using the Ala-File system and have also served a copy of the foregoing by U.S. Mail to the following:
Sam Ingram, Esquire Brian Mosholder, Esquire CARPENTER, INGRAM & MOSHOLDER, LLP 303 Sterling Centre 4121 Carmichael Road Montgomery, AL 36106 Joe Peddy, Esquire Ethan R. Dettling, Esquire SMITH, SPIRES & PEDDY, P.C. Suite 200, 2015 Second Avenue North Birmingham, AL 35203
J. Allen Brinkley, Esquire BRINKLEY & CHESTNUT 307 Randolph Avenue Post Office Box 2026 Huntsville, AL 35804-2026
Douglas S. Fierberg, Esquire Peter C. Grenier, Esquire BODE & GRENIER, LLP Ninth Floor, Connecticut Building 1150 Connecticut Avenue, NW Washington, D.C. 20036
/s/ Stephen A. Sistrunk Stephen A. Sistrunk (ASB-4229-E63S)
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