Sovereign immunity protects governmental entities from tort liability and may only be invoked when a government official is sued in their official capacity. However, another form of immunity, known as official immunity, protects public officials sued in their individual capacities for acts of negligence committed during the course of their official duties but for the performance of discretionary acts, as opposed to ministerial ones. Official immunity exists to protect individual government actors who must exercise judgment in the performance of their duties despite limited resources and information. Generally, most people think of official immunity being applied to police officers during the course of their work protecting the public. However, official immunity can be applied to any individual government actor.
The Missouri Supreme Court recently released its opinion in State ex rel. Michael J. Love, Relator v. The Honorable Heather R. Cunningham, Respondent and State ex rel. Gary Ludwick v. The Honorable Heather R. Cunningham, Judge, two separate cases joined together. In State ex rel. Michael J. Love and State ex rel. Gary Ludwick, decedent, Kaitlyn Anderson, died from injuries she sustained while working at a construction site near a traffic lane. Austin Jarvis and Tonya Musskopfy (Jaxx Jarvis’ father and Anderson’s boyfriend respectively) brought a wrongful death under section 537.080 suit against the Missouri Highway and Transportation Commission (“MHTC”) and four employees in their individual capacity: Michael Love, Gary Ludwick, Kristina Jordan, and James Henson (“employees”). Anderson was pregnant at the time with Jaxx Jarvis in utero. On numerous occasions because of her pregnancy, Anderson requested that MHTC and the employees have a safer job to perform while pregnant with Jaxx Jarvis. Anderson was tasked with striping an intersection within a traffic lane on a highway in St. Louis County but without a required protective vehicle. While Anderson was supervised by employees from MHTC and crouched down placing lane control arrows, a driver drove a vehicle into the workspace and struck Anderson, killing her and Jaxx Jarvis.
Plaintiffs specifically alleged that the employees violated MHTC’s mandatory, non-discretionary rules, policies, and procedures, including the placement of protective vehicles in advance of the workspace at the crash site location, and that the employees acted in bad faith or with malice. Employees moved for judgment on the pleadings, asserting that official immunity provided an affirmative defense to plaintiffs’ claims, which was denied and affirmed in part. Employees then sought writs of prohibition, which was denied.
The court discussed the two exceptions in which official immunity would not apply: (1) public official fails to perform a ministerial duty required of the official by law, or (2) public official acts in bad faith or with malice. Acts are considered “ministerial” when the act is to be performed in a prescribed manner in obedience to the mandate of “legal authority.” If there is any discretion in the duty performed, then it is not ministerial. Thus, the court stated the question is whether the nature of the act itself is ministerial or clerical, not whether a rule, policy, procedure, statute, or regulation creates a mandatory duty to act.
The Court found that the language used in the Plaintiffs’ petition stated verbs such as “ensure” and “to “train” regarding employee knowledge of safety procedures. The Court believed that these words indicate the alleged wrongful acts of the defendants are “highly discretionary.” It further found that neither the duty to ensure placement of a protective vehicle nor the duty to provide ongoing training and safety plan is clerical even though it was alleged that placement of a protective vehicle is a required duty.
The application of official immunity can seem murky. While it may seem obvious that an act may be considered ministerial and not discretionary if there is a requirement that it be done, that is not necessarily the case, as pointed out by the Court in this decision. Even if a policy, procedure, or law requires that some act or inaction be done, that does not necessarily mean it is ministerial. The question of whether the act is ministerial is dealing with the nature of the act itself, not whether it is required to be done. As pointed out by the court, there may be a duty that is required per a policy, but such duty may still be discretionary in nature. As an example, while officers may be required to follow a vehicle pursuit policy, such duty involves highly discretionary decisions, which official immunity is intended to protect.
While the Court’s decision may be seen as a broad application of the official immunity doctrine, in actuality the analysis of the acts to be decided as ministerial or clerical was applied correctly. The question is not whether the duty or act is required by a policy, but whether the nature of the act itself is truly discretionary.