Upload
the-huntsville-times
View
217
Download
0
Embed Size (px)
Citation preview
7/28/2019 Karbhari Summary Judgment Memo
1/180
IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA
SAMMIE LEE DAVIS, as Personal
Representative of THE ESTATE OF DR.
MARIA RAGLAND DAVIS, deceased,
Plaintiff,
vs.
DR. VISTASP M. KARBHARI; DR. AMY
BISHOP, a/k/a AMY BISHOP
ANDERSON; and JAMES ANDERSON,
Defendants.
))))
))))))))))))))
CIVIL ACTION NO. : CV-11-900037
********************
DR. JACQUELINE U. JOHNSON, as
Personal Representative of THE ESTATE
OF DR. ADRIEL D. JOHNSON, SR.,
deceased,
Plaintiff,
vs.
DR. VISTASP M. KARBHARI; DR. AMY
BISHOP, a/k/a AMY BISHOP
ANDERSON; and JAMES ANDERSON,
Defendants.
)))))))))))))))))))
CIVIL ACTION NO. : CV-11-900038
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT KARBHARIS MOTION FOR SUMMARY JUDGMENT
ELECTRONICALLY FILED6/26/2013 6:45 PM
47-CV-2011-900037.00CIRCUIT COURT OF
MADISON COUNTY, ALABAMAJANE C. SMITH, CLERK
7/28/2019 Karbhari Summary Judgment Memo
2/180
i
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. Dr. Karbhari Did Not Know That Dr. Bishop Planned to Murder the
Decedents. ...................................................................................................13
B. Dr. Karbhari Did Not Have Specialized Knowledge That Dr. BishopPlanned to Murder the Decedents. ..........................................................17
C. Dr. Karbhari Possessed No Information That Dr. Bishop Posed an
Imminent Probability of Harm to the Decedents...............................18
II. DR.KARBHARI IS ENTITLED TO STATE-AGENT IMMUNITY. .............................20
A. The Emergency Procedures Handbook Did Not Impose Mandatory
Duties on Dr. Karbhari.............................................................................22
B. The Psychological Crisis Section Required Dr. Karbhari to ExerciseJudgment and Discretion Before Reporting Dr. Bishop to the Police..25
III. DR.KARBHARI DID NOT CAUSE THE DECEDENTSDEATHS. ............................30
CONCLUSION ................................................................................................................31
CERTIFICATE OF SERVICE ......................................................................................33
7/28/2019 Karbhari Summary Judgment Memo
3/180
ii
TABLE OF AUTHORITIES
Cases
Bailey v. Brunos, 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. Shoneys, 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 Regl 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 Assn, 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
7/28/2019 Karbhari Summary Judgment Memo
4/180
iii
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. Churchs 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
7/28/2019 Karbhari Summary Judgment Memo
5/180
1
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.
7/28/2019 Karbhari Summary Judgment Memo
6/180
2
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. Bishopreceived a letter from Dr. Williams informing her that her final appeal for tenure
had been denied.
Dr. Bishop called the Presidents office, but was advised that he was unavailable.Dr. Bishop told the Presidents assistant that she would come to the office and
wait.
The normal practice in the Presidents office at that time was for UAHuntsvillepolice to be informed of a potentially tense meeting such as a termination or, in
1Dr. 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 oftouch 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 Courts prior Orders regarding Dr. Bishops FifthAmendment 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.
Bishops Affidavit were admitted and even if it were assumed to be true, Dr. Karbhari would stillbe entitled to summary judgment.
7/28/2019 Karbhari Summary Judgment Memo
7/180
3
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 thePresident, spoke with Dr. Bishop and was informed that Dr. Bishop would not be
coming to the Presidents office.
Ms. Walker then informed the UAHuntsville police that the professor was notcoming and the danger situation is over and we dont 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. Bishops
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.
7/28/2019 Karbhari Summary Judgment Memo
8/180
4
Karbharis 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. Bishops 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. Bishops 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
2Ex. 1 (Karbhari Aff.) 1.
3Ex. 1 (Karbhari Aff.) 2.
4Ex. 2 (UAH0000941-UAH0000943).
5Ex. 1 ( Karbhari Aff.) 2.
6Ex. 3 (UAH0000920-UAH0000922).
7/28/2019 Karbhari Summary Judgment Memo
9/180
5
Likewise, Dr. Podilas 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. Bishops 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. Bishops tenure and
promotion.12
On May 1, 2009, she wrote Dr. Karbhari a letter on behalf of Dr. Bishops
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. Bishops no-nonsense teaching style,
7Ex. 4 (UAH0000705-UAH0000707).
8Id. at UAH0000706-UAH0000707.
9Id. at UAH0000707.10
Ex. 1 ( Karbhari Aff.) 3.
11Ex. 5 (DAVIS and JOHNSON 000057).
12Ex. 1 ( Karbhari Aff.) 3.
13Ex. 6 (UAH0001242-UAH0001243).
14Id.
7/28/2019 Karbhari Summary Judgment Memo
10/180
6
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. Bishops 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 Provosts 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
15Id.16
Ex. 1 (Karbhari Aff.) 4.
17Ex. 1 (Karbhari Aff.) 4.
18Ex. 7 (UAH0000863).
19Ex. 8 (Spreadsheet of Telephone Records).
20Ex. 9 (Mandel Aff.) 3-4.
7/28/2019 Karbhari Summary Judgment Memo
11/180
7
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. Bishops
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 Presidents 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
21Ex. 9 (Mandel Aff.) 5.
22Ex. 9 (Mandel Aff.) 6; Ex. 10 (UAH0002363).
23Ex. 9 (Mandel Aff.) 1-2.
24Ex. 9 (Mandel Aff.) 7.
25Ex. 9 (Mandel Aff.) 7.
26Ex. 9 (Mandel Aff.) 7.
27
Ex. 11 (Walker Aff.) 4.28
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, theUAHuntsville 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.
7/28/2019 Karbhari Summary Judgment Memo
12/180
8
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. Bishops 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.
29Ex. 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. Moriaritytestified: 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. Bishops cell phone, as confirmed by Dr. Moriaritystestimony, 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 Presidents 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
Ex. 13 (Moriarity May 5, 2011 Aff.) 6.
31Ex. 13 (Moriarity May 5, 2011 Aff.) 7.
32Ex. 13 (Moriarity May 5, 2011 Aff.) 8.
33Ex. 13 (Moriarity May 5, 2011 Aff.) 9.
34Ex. 13 (Moriarity May 5, 2011 Aff.) 9.
7/28/2019 Karbhari Summary Judgment Memo
13/180
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 Presidents office.39
At 4:40 PM, less than an hour after Dr.
Bishops 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 dont need
that safety issue anymore.40
A search of the Computer Aided Dispatch Record Management System contains
no records of any dispatch to the Presidents 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
35Ex. 9 (Mandel Aff.) 10; Ex. 8 (Spreadsheet of Telephone Records).
36Ex. 9 (Mandel Aff.) 10.
37Ex. 9 (Mandel Aff.) 10.
38 Ex. 11 (Walker Aff.) 7; Ex. 8 (Spreadsheet of Telephone Records).39
Ex. 11 (Walker Aff.) 7.
40Ex. 15 (Recording of November 12, 2009 Call to UAHuntsville Police Dispatch); Ex.
11 (Walker Aff.) 8.
41Ex. 16 (Sisco Aff.) 6.
42Ex. 16 (Sisco Aff.) 9.
7/28/2019 Karbhari Summary Judgment Memo
14/180
10
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 wont 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. Bishops
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.
43Ex. 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.).
44Ex. 13 (Moriarity May 5, 2011 Aff.) 10.
45Id. 11.
46Id. 11.47
Id. 11.
48Id. 12.
49Id. 13.
50Id. 13.
51Id. 13.
7/28/2019 Karbhari Summary Judgment Memo
15/180
11
Bishops 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. Bishops call to the Presidents 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. Karbharis 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
52Ex. 13 ( Moriarity May 5, 2011 Aff.) 14.
53Ex. 11 (Walker Aff.) 9; Ex. 1 (Karbhari Aff.) 5.
54Ex. 1 (Karbhari Aff.) 6.
55 Ex. 1 (Karbhari Aff.) 6.56
Ex. 1 (Karbhari Aff.) 7, 9.
57Ex. 1 (Karbhari Aff.) 9; Ex. 30 (UAH0010564).
58Dr. Karbhari notes his dispute of Dr. Bishops 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
7/28/2019 Karbhari Summary Judgment Memo
16/180
12
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
Presidents 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 THEDECEDENTS 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.
59Ex. 1 (Karbhari Aff.) 11.
60Ex. 1 (Karbhari Aff.) 11.
61 Ex. 9 (Mandel Aff. 11); Ex. 11 (Walker Aff.) 10.62
Ex. 16 (Sisco Aff.) 2-3.
63[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 (citationomitted).
7/28/2019 Karbhari Summary Judgment Memo
17/180
13
circumstances.64
To create a duty to protect, Plaintiffs must submit substantial evidence
of each of the following three elements:
(1) the particular criminal conduct must have been foreseeable;
(2) the defendant must have possessed specialized knowledge of the
criminal activity; and
(3) 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 theDecedents.
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. Shoneys, Inc.,66
in whichthe 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
64Parham 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 absentspecial relationships or circumstances, a person has no duty to protect another from criminal acts
of a third party.).
65New Addition Club, 903 So. 2d at 73 (quoting Carroll v. Shoneys, Inc., 775 So. 2d
753, 756 (Ala. 2000)).
66775 So. 2d 753.
67Id. at 754.
7/28/2019 Karbhari Summary Judgment Memo
18/180
14
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 occurredmurderwas 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 [defendants] 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
defendants knowledge that the murderer was hot tempered, had brandished a shotgun,
and had punched his girlfriend. The Alabama Supreme Court reversed judgment against
68
Id.69
Id. at 755.
70Id.
71Id. at 756-57.
72Id.
73903 So. 2d 68, 75 (Ala. 2004).
7/28/2019 Karbhari Summary Judgment Memo
19/180
15
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 members
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 self-
evident 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,andWilder. Dr. Karbharihad no knowledge that Dr. Bishop had a history
74Id. 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 Regl Med. Ctr., 785 So. 2d 368, 370 (Ala.
2000)).75
390 Fed. Appx. 910 (11th Cir. 2010).
76Id. at 913.
77Ex. 1 (Karbhari Aff.) 6; Am. Compls. at 6 (Had Defendant Karbhari followed life-
safety 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 theproper course investigated Bishop and discovered her prior criminal record of violence . . . .).
7/28/2019 Karbhari Summary Judgment Memo
20/180
16
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. Karbharis alleged knowledge that Dr. Bishop was suicidal, as explained by Dr.
Moriaritys 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.
Moriaritys assurance that Dr. Bishop did not plan to harm herself, there would have been
no reason to respond to this information.
Likewise, Dr. Karbharis 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. Bishops 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. Williamss staff, and never even
showed up for the meeting, what could Dr. Karbhari have done in response? Even with
78Ex. 1 (Karbhari Aff.) 6.
79Id.
80Id.
81Ex. 13 (Moriarity Aff.) 8.
7/28/2019 Karbhari Summary Judgment Memo
21/180
17
such information, the particular criminal conduct which occurredmurderwas 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. BishopPlanned 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. Bishops 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.
7/28/2019 Karbhari Summary Judgment Memo
22/180
18
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 anImminent 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. Bishops 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
82Ex. 1 (Karbhari Aff.) 11.
83Id. 12-14.
84 See Hail v. Regency Terrace Owners Assn, 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 haveforeseen 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 thatpose imminent probability of harm to an invitee); Webster v. Churchs 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. Brunos, Inc., 561 So. 2d 509, 511 (Ala.1990) (same);Henley v. Pizitz Realty Co., 456 So. 2d 272, 277 (Ala. 1984) (same).
7/28/2019 Karbhari Summary Judgment Memo
23/180
19
harm: Nail v. Jefferson County Truck Growers Association, Inc.85
andWhataburger, 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.
InNail, 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 victims 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
85542 So. 2d 1208 (Ala. 1988).
86706 So. 2d 1220 (Ala.Civ.App. 1997).
87 The Alabama Supreme Court recognized in Finley, 705 So. 2d at 829 n.3, thatNail wasdecided under the scintilla rule which had since been abandoned by statute. With regard toWhataburger, 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.
88Nail, 542 So. 2d at 1211-1213.
89Whataburger, 706 So. 2d at 1222.
7/28/2019 Karbhari Summary Judgment Memo
24/180
20
evidence of any escalation in Dr. Bishops 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 agents . . . exercising his or her
judgment in the administration of a department or agency of government.90
Thus, State-
agent 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 Bishops 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 Bishops condition.93
90Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000) (emphasis in original).
91Ex parte Hayles, 852 So. 2d 117, 122 (Ala. 2002).
92Am. Compls. 30.
93Id. 42.
7/28/2019 Karbhari Summary Judgment Memo
25/180
21
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 authority95
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. Bishops 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
94Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006).
95Id.
96Allegations 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 officers 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 specificallyallege, 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 thearrest.) (citingEx parte City of Montgomery, 758 So. 2d 565, 570 (Ala. 1999)).
7/28/2019 Karbhari Summary Judgment Memo
26/180
22
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 MandatoryDuties 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-agents 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 plaintiffs decedent, the defendants violated rules and
97A 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) (quotingEx parte Butts,
775 So. 2d 173, 178 (Ala. 2000)).
98992 So. 2d 1276 (Ala. 2008).
7/28/2019 Karbhari Summary Judgment Memo
27/180
7/28/2019 Karbhari Summary Judgment Memo
28/180
24
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 Courts 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 coachs 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
103Id. (internal citation omitted).
104874 So. 2d 1046.
105Id. at 1053-54.
106Id. at 1054.
107Id. at 1055.
7/28/2019 Karbhari Summary Judgment Memo
29/180
25
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 andCity
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 Handbooks 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 ExerciseJudgment 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. Bishops mental state. The Alabama
Supreme Court has held on numerous occasions that such rules and regulationswhich
still require a state official to exercise personal judgment and discretionare 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.
108Ex. 31 (EPH000001 EPH000022) at 14.
7/28/2019 Karbhari Summary Judgment Memo
30/180
26
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 home-
day-care providers to ensure they were in compliance with DHRs minimum standards.
One such minimum standard required that [n]o medication . . . shall be administered
without a written, signed authorization form from the childs parent(s)/guardian(s).110
The defendant discovered during her review of the day cares 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 licensing-
evaluation 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 underCranman.113
109971 So. 2d 652 (Ala. 2007).
110Id. at 654.
111Id. at 663.
112Id.
113Id. at 664.
7/28/2019 Karbhari Summary Judgment Memo
31/180
27
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 schools 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-year-
old 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 Fryers 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
114806 So. 2d 1186 (Ala. 2000).
115Id. at 1189.
116Id. 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
agents judgment in the performance of required acts; defendant was still required to exercise
7/28/2019 Karbhari Summary Judgment Memo
32/180
28
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 persons 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 plaintiffs 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 notifyappropriate law enforcement officials when any person violates local board of education policies
concerning . . . threatened physical harm to a person did not remove principals discretion after
learning of threat to plaintiff; [i]n determining whether a student has violated one of the localboard of educations policies . . ., the principal is engaged in the performance of a discretionary
function, because making that determination requires the principal to use his personaljudgment.) (internal quotation omitted) (emphasis omitted).
117887 So. 2d 201 (Ala. 2003).
118Id. at 207.
119Id.
120Id. (emphasis in original).
7/28/2019 Karbhari Summary Judgment Memo
33/180
29
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 Howardis 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. Bishops 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
121Am. Compls. 37-40.
122Ex. 13 (Moriarity Aff.) 13.
123Id. 8.
124Am. Compls. at 2.
7/28/2019 Karbhari Summary Judgment Memo
34/180
7/28/2019 Karbhari Summary Judgment Memo
35/180
31
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 causemay 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. Karbharis
alleged failure to follow the Handbook and Dr. Bishops 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 Bishops 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
127Byrd v. Commercial Credit Corp., 675 So. 2d 392, 393 (Ala. 1996).
128Gooden v. City of Talladega, 966 So. 2d 232, 23940 (Ala. 2007) (internal quotations
and citations omitted).
129Am. Compls. 43.
7/28/2019 Karbhari Summary Judgment Memo
36/180
32
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 LLP100 Brookwood Place
Seventh Floor
Birmingham, AL 35209
(205) 868-6000 (Telephone)
(205) 868-6099 (Facsimile)
E-mail: [email protected]
7/28/2019 Karbhari Summary Judgment Memo
37/180
33
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
J. Allen Brinkley, Esquire
BRINKLEY & CHESTNUT
307 Randolph Avenue
Post Office Box 2026
Huntsville, AL 35804-2026
Joe Peddy, EsquireEthan R. Dettling, Esquire
SMITH, SPIRES & PEDDY, P.C.
Suite 200, 2015 Second Avenue North
Birmingham, AL 35203
Douglas S. Fierberg, EsquirePeter 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)
7/28/2019 Karbhari Summary Judgment Memo
38/180
7/28/2019 Karbhari Summary Judgment Memo
39/180
7/28/2019 Karbhari Summary Judgment Memo
40/180
7/28/2019 Karbhari Summary Judgment Memo
41/180
7/28/2019 Karbhari Summary Judgment Memo
42/180
7/28/2019 Karbhari Summary Judgment Memo
43/180
7/28/2019 Karbhari Summary Judgment Memo
44/180
7/28/2019 Karbhari Summary Judgment Memo
45/180
7/28/2019 Karbhari Summary Judgment Memo
46/180
7/28/2019 Karbhari Summary Judgment Memo
47/180
7/28/2019 Karbhari Summary Judgment Memo
48/180
7/28/2019 Karbhari Summary Judgment Memo
49/180
7/28/2019 Karbhari Summary Judgment Memo
50/180
7/28/2019 Karbhari Summary Judgment Memo
51/180
7/28/2019 Karbhari Summary Judgment Memo
52/180
7/28/2019 Karbhari Summary Judgment Memo
53/180
7/28/2019 Karbhari Summary Judgment Memo
54/180
7/28/2019 Karbhari Summary Judgment Memo
55/180
7/28/2019 Karbhari Summary Judgment Memo
56/180
7/28/2019 Karbhari Summary Judgment Memo
57/180
7/28/2019 Karbhari Summary Judgment Memo
58/180
7/28/2019 Karbhari Summary Judgment Memo
59/180
7/28/2019 Karbhari Summary Judgment Memo
60/180
7/28/2019 Karbhari Summary Judgment Memo
61/180
7/28/2019 Karbhari Summary Judgment Memo
62/180
7/28/2019 Karbhari Summary Judgment Memo
63/180
7/28/2019 Karbhari Summary Judgment Memo
64/180
7/28/2019 Karbhari Summary Judgment Memo
65/180
7/28/2019 Karbhari Summary Judgment Memo
66/180
7/28/2019 Karbhari Summary Judgment Memo
67/180
7/28/2019 Karbhari Summary Judgment Memo
68/180
7/28/2019 Karbhari Summary Judgment Memo
69/180
7/28/2019 Karbhari Summary Judgment Memo
70/180
7/28/2019 Karbhari Summary Judgment Memo
71/180
7/28/2019 Karbhari Summary Judgment Memo
72/180
7/28/2019 Karbhari Summary Judgment Memo
73/180
7/28/2019 Karbhari Summary Judgment Memo
74/180
7/28/2019 Karbhari Summary Judgment Memo
75/180
7/28/2019 Karbhari Summary Judgment Memo
76/180
7/28/2019 Karbhari Summary Judgment Memo
77/180
7/28/2019 Karbhari Summary Judgment Memo
78/180
7/28/2019 Karbhari Summary Judgment Memo
79/180
7/28/2019 Karbhari Summary Judgment Memo
80/180
7/28/2019 Karbhari Summary Judgment Memo
81/180
7/28/2019 Karbhari Summary Judgment Memo
82/180
7/28/2019 Karbhari Summary Judgment Memo
83/180
7/28/2019 Karbhari Summary Judgment Memo
84/180
7/28/2019 Karbhari Summary Judgment Memo
85/180
7/28/2019 Karbhari Summary Judgment Memo
86/180
7/28/2019 Karbhari Summary Judgment Memo
87/180
7/28/2019 Karbhari Summary Judgment Memo
88/180
7/28/2019 Karbhari Summary Judgment Memo
89/180
7/28/2019 Karbhari Summary Judgment Memo
90/180
7/28/2019 Karbhari Summary Judgment Memo
91/180
7/28/2019 Karbhari Summary Judgment Memo
92/180
7/28/2019 Karbhari Summary Judgment Memo
93/180
7/28/2019 Karbhari Summary Judgment Memo
94/180
7/28/2019 Karbhari Summary Judgment Memo
95/180
7/28/2019 Karbhari Summary Judgment Memo
96/180
7/28/2019 Karbhari Summary Judgment Memo
97/180
7/28/2019 Karbhari Summary Judgment Memo
98/180
7/28/2019 Karbhari Summary Judgment Memo
99/180
7/28/2019 Karbhari Summary Judgment Memo
100/180
7/28/2019 Karbhari Summary Judgment Memo
101/180
7/28/2019 Karbhari Summary Judgment Memo
102/180
7/28/2019 Karbhari Summary Judgment Memo
103/180
7/28/2019 Karbhari Summary Judgment Memo
104/180
7/28/2019 Karbhari Summary Judgment Memo
105/180
7/28/2019 Karbhari Summary Judgment Memo
106/180
7/28/2019 Karbhari Summary Judgment Memo
107/180
7/28/2019 Karbhari Summary Judgment Memo
108/180
7/28/2019 Karbhari Summary Judgment Memo
109/180
7/28/2019 Karbhari Summary Judgment Memo
110/180
7/28/2019 Karbhari Summary Judgment Memo
111/180
7/28/2019 Karbhari Summary Judgment Memo
112/180
7/28/2019 Karbhari Summary Judgment Memo
113/180
7/28/2019 Karbhari Summary Judgment Memo
114/180
7/28/2019 Karbhari Summary Judgment Memo
115/180
7/28/2019 Karbhari Summary Judgment Memo
116/180
7/28/2019 Karbhari Summary Judgment Memo
117/180
7/28/2019 Karbhari Summary Judgment Memo
118/180
7/28/2019 Karbhari Summary Judgment Memo
119/180
7/28/2019 Karbhari Summary Judgment Memo
120/180
7/28/2019 Karbhari Summary Judgment Memo
121/180
7/28/2019 Karbhari Summary Judgment Memo
122/180
7/28/2019 Karbhari Summary Judgment Memo
123/180
7/28/2019 Karbhari Summary Judgment Memo
124/180
7/28/2019 Karbhari Summary Judgment Memo
125/180
7/28/2019 Karbhari Summary Judgment Memo
126/180
7/28/2019 Karbhari Summary Judgment Memo
127/180
7/28/2019 Karbhari Summary Judgment Memo
128/180
7/28/2019 Karbhari Summary Judgment Memo
129/180
7/28/2019 Karbhari Summary Judgment Memo
130/180
7/28/2019 Karbhari Summary Judgment Memo
131/180
7/28/2019 Karbhari Summary Judgment Memo
132/180
7/28/2019 Karbhari Summary Judgment Memo
133/180
7/28/2019 Karbhari Summary Judgment Memo
134/180
7/28/2019 Karbhari Summary Judgment Memo
135/180
7/28/2019 Karbhari Summary Judgment Memo
136/180
7/28/2019 Karbhari Summary Judgment Memo
137/180
7/28/2019 Karbhari Summary Judgment Memo
138/180
7/28/2019 Karbhari Summary Judgment Memo
139/180
7/28/2019 Karbhari Summary Judgment Memo
140/180
7/28/2019 Karbhari Summary Judgment Memo
141/180
7/28/2019 Karbhari Summary Judgment Memo
142/180
7/28/2019 Karbhari Summary Judgment Memo
143/180
7/28/2019 Karbhari Summary Judgment Memo
144/180
7/28/2019 Karbhari Summary Judgment Memo
145/180
7/28/2019 Karbhari Summary Judgment Memo
146/180
7/28/2019 Karbhari Summary Judgment Memo
147/180
7/28/2019 Karbhari Summary Judgment Memo
148/180
7/28/2019 Karbhari Summary Judgment Memo
149/180
7/28/2019 Karbhari Summary Judgment Memo
150/180
7/28/2019 Karbhari Summary Judgment Memo
151/180
7/28/2019 Karbhari Summary Judgment Memo
152/180
7/28/2019 Karbhari Summary Judgment Memo
153/180
7/28/2019 Karbhari Summary Judgment Memo
154/180
7/28/2019 Karbhari Summary Judgment Memo
155/180
7/28/2019 Karbhari Summary Judgment Memo
156/180
7/28/2019 Karbhari Summary Judgment Memo
157/180
7/28/2019 Karbhari Summary Judgment Memo
158/180
7/28/2019 Karbhari Summary Judgment Memo
159/180
7/28/2019 Karbhari Summary Judgment Memo
160/180
7/28/2019 Karbhari Summary Judgment Memo
161/180
7/28/2019 Karbhari Summary Judgment Memo
162/180
7/28/2019 Karbhari Summary Judgment Memo
163/180
7/28/2019 Karbhari Summary Judgment Memo
164/180
7/28/2019 Karbhari Summary Judgment Memo
165/180
7/28/2019 Karbhari Summary Judgment Memo
166/180
7/28/2019 Karbhari Summary Judgment Memo
167/180
7/28/2019 Karbhari Summary Judgment Memo
168/180
7/28/2019 Karbhari Summary Judgment Memo
169/180
7/28/2019 Karbhari Summary Judgment Memo
170/180
7/28/2019 Karbhari Summary Judgment Memo
171/180
7/28/2019 Karbhari Summary Judgment Memo
172/180
7/28/2019 Karbhari Summary Judgment Memo
173/180
7/28/2019 Karbhari Summary Judgment Memo
174/180
7/28/2019 Karbhari Summary Judgment Memo
175/180
7/28/2019 Karbhari Summary Judgment Memo
176/180
7/28/2019 Karbhari Summary Judgment Memo
177/180
7/28/2019 Karbhari Summary Judgment Memo
178/180
7/28/2019 Karbhari Summary Judgment Memo
179/180
7/28/2019 Karbhari Summary Judgment Memo
180/180