Monica Clark and Janice Moutray died on a sunny spring day in 2004. A police cruiser hit the car driven by Clark, in which Moutray rode, just outside of downtown Farmington. Both women passed away within minutes of the crash. Clark’s two children, who were in the back seat, were severely injured. The cruiser was traveling between 67 and 71 miles per hour at impact. The police officer driving the cruiser had joined the pursuit of an alleged fleeing felon, without permission to do so and against department policy.
The women’s family brought suit against the officer, his supervisor, Farmington’s police chief and the city. After summary judgment was granted in favor of the defendants, the family sought appellate review. The Missouri Court of Appeals, Southern District, affirmed the trial court’s ruling, but in a landmark decision, the Missouri Supreme Court reversed, and in so doing clarified Missouri law pertaining to multiple immunities, including sovereign immunity, the public duty doctrine and official immunity.i
Developments after the Supreme Court’s opinion in Southers, however, turned nearly 150 years of appellate law on its head, seemingly redefining who is a public official entitled to official immunity. These cases ostensibly grant near blanket immunity to certain government workers, no matter the context of their negligent conduct, laying waste to the ability of injured persons to seek redress against those public employees.
What happened?
Official Immunity
Official immunity is a common-law doctrine relieving certain public officials from liability for acts of ordinary negligence committed in the course of official duties.ii Official immunity is intended to provide protection to those public officials who must exercise professional expertise and judgment in the performance of their duties.iii The goal of official immunity is “to permit public employees to make judgments affecting public safety and welfare without concerns about possible personal liability.”iv (emphasis added)
Generally, official immunity shields officials from liability for injuries arising out of their discretionary acts; ministerial acts are not protected by official immunity.v Whether an act is discretionary or ministerial depends on the “degree of reason and judgment required” to perform the act.vi Whether an act can be characterized as discretionary depends upon the degree of reason and judgment required.vii In contrast, ministerial acts require certain duties to be performed “upon a given state of facts, in a prescribed manner ... without regard to [the official’s] own judgment.”viii
The Origins of Official Immunity
The grant of immunity to certain public officials dates to the decade preceding the Civil War. In 1854 the Missouri Supreme Court held that Missouri’s surveyor general could not be liable for harms suffered by an injured party absent proof that that the official’s actions were “willful and malicious.”ix The Court recognized the “well settled” rule that public officers are shielded from liability for injuries resulting from actions taken by them on public matters within the scope of their jurisdiction.x
In so holding, the Court identified the powers and duties of the surveyor general.xi The Court noted that Congress created the office in connection with the partition, sale and settling of new national territories, including that land which eventually became Missouri.xii Central to the Court’s grant of official immunity was its recognition of the role the office then played in serving a clear and identifiable purpose distinctly public in nature – the partitioning of territory acquired by the fledging United States.xiii
Application of the Doctrine
Historically, official immunity did not protect all public employees who negligently act while performing a discretionary activity. Until very recently, Missouri courts consistently refused to provide official immunity to government workers who were not engaged in an activity going “to the essence of governing” at the time the official negligently acted.xiv For instance, Missouri courts routinely denied the shield of official immunity to teachers; police officers responding to non-emergencies; physicians practicing in government-operated hospitals; paramedics treating patients in non-emergency situations; and municipal workers cleaning streets.xv
In State ex rel. Eli Lilly v. Gaertner, the Missouri Court of Appeals, Eastern District, held that government-employed physicians are not entitled to immunity despite their employment by the sovereign.xvi The court rejected defendants’ characterization of all official acts as discretionary entitled to immunity, except those of a ministerial nature.xvii The court carefully explained the rationale of its holding:
To do so would extend the doctrine of official immunity from tort liability to all decisions made by public officials or employees for almost every act requiring the use of discretion or judgment … Shielding officials for decisions other than those made in the exercise of the sovereign’s power which go to the essence of governing, extends the doctrine of official immunity beyond its original intent to promote smooth and effective government.xviii (emphasis added)
In denying the shield of official immunity, the Eastern District noted that the duty owed by a physician to her patient did not involve any exercise of the sovereign’s power; rather, the court recognized, the duty of physicians employed by the state is indistinguishable to those doctors working in private practice.xix
Similarly, Missouri courts routinely held that teachers employed by publicly funded districts are not public officials who enjoy immunity from liability.xx Missouri law traditionally imposed on teachers the duty to take reasonable care toward their students; a teacher shall be liable when a breach of the duty results in injury to the student.xxi According to a prominent commentator, teachers were not entitled to official immunity because of the intrinsic nature of their duties:
In the performance of their duties, teachers are answerable to the building principal and the district superintendent. Their duties and authority are not set out in the statues, unlike the duties of school board members, but rather determined by the school board, the superintendent, and the principal.xxii
More than 30 years ago, the Missouri Supreme Court succinctly instructed that no authority clothed teachers with immunity for harms resulting from their negligence.xxiii
Opinions issued in Southers’ wake radically transformed 150 years of Missouri law. Why did Missouri courts suddenly begin extending official immunity’s shield with little regard to whether the government employee’s work served a distinctly public purpose?
Southers v. Farmington
In Southers, the Supreme Court restated its holding that an officer responding to a police emergency was entitled to official immunity.xxiv In so holding, the Court rejected plaintiffs’ claim that the officer’s violation of Missouri statute and local departmental policy removed official immunity’s shield.xxv In reaching its conclusion, the Court enunciated basic concepts pertaining to the immunity, starting with the general statement that the doctrine protects public officials from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.xxvi
Importantly, the Court did not address whether the police officer was engaged in an act going to the “essence of governing” at the time of the chase. There was no need to do so; the position was understood, as the Court had established that principle just two years earlier in Davis.xxvii In sum, the Court addressed an extremely narrow issue: whether entitlement to the doctrine may be lost by a government official’s violation of law or governing policy.
And, though not directly pertinent to deciding Southers, the Court acknowledged during its discussion that the doctrine does not apply to police officers acting negligently while responding to non-emergencies.xxviii In other words, the Court noted, the doctrine applies only to those public employees acting on distinctly public matters. The Court’s discussion implicitly recognized the dichotomy recognized by dozens of Missouri appellate opinions over 150 years: official immunity exists to protect public officials acting on public matters particular to the business of governing.
The Immunity’s Radical Evolution after Southers
Nonetheless, subsequent appellate opinions misrepresented the Supreme Court’s opinion in Southers.xxix For instance, in multiple cases, appellate courts affirmed trial courts’ findings that teachers were entitled to official immunity for discretionary acts.xxx These opinions referenced the rule enunciated in Southers about official immunity’s general protection.xxxi Unfortunately, the opinions used this general rule as the basis for distorting the analysis, identifying “the true issue” as whether negligence occurred while the teacher “was performing a discretionary act.”xxxii These courts ignore the prerequisite: the official must be engaged in an act distinctly public in nature before one considers whether the act is discretionary or ministerial.xxxiii In other words, not every public employee is a public official entitled to the doctrine’s protection.
Further, this reliance is misplaced; the inquiry ignores the context in which Southers arose and the specific holding made by the Supreme Court in that case, involving a collision occurring during a rapidly-evolving emergency situation involving police officers pursuing a fleeing felon at high speed.xxxiv Southers revolved around the immunities afforded a municipality and its police officers in an emergency situation demanding those officers make quick decisions during the course of the pursuit. Again, there was no dispute that the officers were engaged in actions distinctly public in nature: the apprehension of a fleeing felon.
And, most alarmingly, these opinions misrepresent Southers. For instance, in both Ware and McCoy, the appellate courts stated that the Supreme Court declared in Southers that official immunity “protects all public employees.”xxxv That is simply not the case. In fact, the Court reiterated in Southers that “the official immunity doctrine does not apply to police officers responding to non-emergencies.”xxxvi Implicit in this statement is the recognition that official immunity shall only be provided to officials carrying out a purpose distinctly public in nature.
The Grant of Immunity to Public Defenders
The Supreme Court next addressed the scope of official immunity in December 2019.xxxvii In Alsup, the Court reviewed a trial court’s summary judgment denial to an in-school suspension teacher.xxxviii In that case, the parties argued whether the teacher failed to perform a ministerial duty demanded by statute. Interestingly, the injured student admitted the teacher was a “public official”; the opinion is devoid of any suggestion that he challenged the doctrine’s application in Boever, McCoy and Elias.xxxix In any event, the Court reversed the denial of judgment, disagreeing that the teacher was engaged in a ministerial act and holding him entitled to immunity.xl
Seven months later in Laughlin, the Court addressed the doctrine’s application to public defenders.xli The Court’s opinion represents a stark departure from its previous decisions. In Laughlin, the Court held that public defenders are entitled to official immunity for claims of legal malpractice.xlii In so holding, the Court noted that defense lawyers were acting pursuant to duties imposed on them by both the federal and state constitutions and Missouri statute.xliii Recognizing that Southers did not overrule Eli Lilly, the Court nevertheless noted that Southers also did not explicitly restrict application of official immunity to actions going to “the essence of governing.”xliv
The Court’s analysis suggests that public employees are entitled to official immunity for harms resulting from their discretionary conduct, notwithstanding the nature of the work challenged by plaintiff. In so holding, the Court ignored its own direction that the doctrine does not apply to public employees acting in non-emergency, non-public matters.xlv Interestingly, the Court also relied on Alsup; the opinion notes that the Court extended immunity to the teacher after his conduct resulted in injury.xlvi The Court’s statement that the teacher was not a “public official” engaged in the “essence of governing,xlvii however, is troubling. That point was not at issue in Alsup and, as noted above, was inexplicably admitted by plaintiff during his appeal.xlviii
Where Do We Go from Here?
No one can genuinely argue that actions undertaken by a teacher planning a class activity are akin to those decisions made by police officers in the heat of the moment while responding to an emergency. Southers reiterates the absolute need to protect emergency responders forced to act decisively in rapidly evolving situations affecting public safety, without limitation.xlix The opinion also acknowledges that public actors shall be immune from tort liability for injuries resulting from negligence occurring while serving a uniquely public objective. But Southers also reinforces the decades-old notion that official immunity does not insulate all government employees from tort liability.l
Granting official immunity in the former achieves the doctrine’s long-established purpose: providing a shield to individual actors who necessarily exercise judgment affecting public safety and welfare while engaged in a clear public purpose.li Laughlin portends a remarkable shift in Missouri law, disregard for decades of precedent, and the turning of a deaf ear to the age-old issue of who shall bear the burden of shouldering harms and losses resulting from negligence. Forty-one years ago, the Eastern District issued a now-prescient warning in Eli Lilly about extending the shield of official immunity to actions taken outside “the exercise of the sovereign’s power.” In Laughlin, the Supreme Court nudged Missouri law toward that abyss.
[1] Southers v. City of Farmington, 263 S.W.3d 603 (Mo. banc 2008).
[1] Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d 760, 764 (Mo. banc 2006); Harris v. Munoz, 43 S.W.3d 384, 387 (Mo.App. W.D. 2001).
[1] Southers, supra note 1, at 610-11, 618-19.
[1] Id. at 611 (emphasis added).
[1] State ex rel. Howenstine v. Roper, 155 S.W.3d 747, 752 (Mo. banc 2005); Harris, supra note 2, at 387.
[1] Davis, supra note 2, at 763.
[1] Kanagawa v. State by and through Freeman, 685 S.W.2d 831, 836 (Mo. banc 1985).
[1] Harris, supra note 2, at 387; See also Jungerman v. City of Raytown, 925 S.W.2d 202, 205 (Mo. banc 1996).
[1] Reed v. Conway, 20 Mo. 22, 53 (Mo. 1854).
[1] Id. at 46-48.
[1] Id. at 38.
[1] Id. at 38-39.
[1] Id. at 43-53.
[1] See State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 764-65 (Mo.App. E.D. 1981).
[1] Brown v. Tate, 888 S.W.2d 413, 415 (Mo.App. W.D. 1994); Eli Lilly, supra note 14, at 765-766; Thomas v. Brandt, 325 S.W.3d 481, 483 (Mo.App. E.D. 2010); Robinson v. Hooker, 323 S.W.3d 418, 426 (Mo.App. W.D. 2010).
[1] Eli Lilly, supra note 14, at 764.
[1] Id. at 765.
[1] Id. at 765.
[1] Id. at 764.
[1] Jackson v. Roberts, 774 S.W.2d 860, 861 (Mo.App. E.D. 1989); Lehmen v. Wansing, 624 S.W.2d 1, 2-3 (Mo. banc 1981); Spearman v. University City Pub. Sch. Dist., 617 S.W.2d 68, 71 (Mo. banc 1981); Kersey v. Harbin, 591 S.W.2d 745 (Mo.App. S.D. 1979).
[1] Spearman, supra note 20, at 71-72.
[1] Missouri School Law § 8.6 (2003).
[1] Spearman, supra note 20, at 71.
[1] Southers, supra note 1, at 617, 620.
[1] Id.
[1] Id. at 610.
[1] Id. at 614-617; see Davis, supra note 2, at 763-64.
[1] Southers, supra note 1, at 618-619; see Brown, supra note 15, at 415.
[1] See Boever v. Special Sch. Dist. of St. Louis County, 296 S.W.3d 487 (Mo.App. E.D. 2009); Woods v. Ware, 471 S.W.3d 385 (Mo.App. W.D. 2015); McCoy v. Martinez, 480 S.W.3d 420 (Mo.App. E.D. 2016); Elias v. Davis, 535 S.W.3d 737 (Mo.App. W.D. 2017).
[1] Woods, supra note 29, at 392-393; Boever, supra note 29, at 493.
[1] See cases at note 29, supra.
[1] See, e.g., Woods, supra note 29, at 392.
[1] See Reed, supra note 9, at 43-53; Kersey v. Harbin, 531 S.W.2d 76, 81 (Mo.App. Spr.D. 1975); Eli Lilly, supra note 14, at 764-65; Kanagawa, supra note 7, at 836; Jackson, supra note 20, at 860-861; Brown, supra note 15, at 415. CompareBoever, supra note 29, at 492; Ware, supra note 29, at 391-92; McCoy, supra note 29, at 424-25.
[1] Southers, supra note 1, at 607-09.
[1] See Ware, supra note 29, at 391-392; McCoy, supra note 29, at 424-25.
[1] Southers, supra note 1, at 618.
[1] State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187 (Mo. banc 2019); see Laughlin v. Perry, 604 S.W.3d 621 (Mo. banc 2020); State ex rel. Edwards v. Rathert, 624 S.W.3d 159 (Mo. banc 2021).
[1] Alsup, supra note 37, at 189.
[1] Id. at 193.
[1] Id. at 193-94.
[1] Laughlin, supra note 37, at 624-25.
[1] Id. at 623.
[1] Id. at 627.
[1] Id.
[1] Id.; compare Southers, supra note 1, at 618-19; Davis, supra note 2, at 763; Lehmen, supra note 20, at 2-3; Spearman, supra note 20, at 71-72.
[1] Laughlin, supra note 27, at 627.
[1] Id. at 627.
[1] Compare Alsup, supra note 37, at 193: “Mariano does not dispute that Alsup is a public official.”
[1] Southers, supra note 1, at 610-11; compare Thomas, supra note 15, at 483-84.
[1] Id. at 618-619; compare Brown, supra note 15, at 815.
[1] See Southers, supra note 1, at 611.
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