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Conclusory allegations of malice, without more, are insufficient to overcome official immunity

State ex rel. Love v. Cunningham, No. SC100197 (Mo. Supreme Court, June 4, 2024), and its three companion cases, involved wrongful death claims filed against the Missouri Highways and Transportation Commission (“MHTC”) and individual supervisors by relatives of a MoDOT employee and her in utero son after they were fatally injured while the employee was striping an intersection on a highway in St. Louis County. It was alleged that although the MHTC had long-standing mandatory policies and procedures requiring the placement of a protective vehicle in advance of work sites, none was provided or used for this work site where a vehicle drove into the work zone and directly struck the employee, inflicting the fatal injuries. 

The MHTC policy requiring use of a protective vehicle whenever workers were to be physically working within a traffic lane has been in place since at least 1980. Also, on several occasions before her death, the employee had asked at least some of her supervisors to place her in a safer role to minimize the risk of injury while she was pregnant, and all the supervisors included in the suit were aware of these requests. The plaintiffs alleged supervisors “approved and ordered [the deceased employee] to work in an open traffic lane without a protective vehicle.”  They also alleged, as to each supervisor, that violation of the “mandatory duty to ensure the placement of a protective vehicle in advance of the work space…was willfully wrong, done with malice, and/or done in bad faith.” 

The Supreme Court discussed the doctrine of official immunity, which generally protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts. (Sovereign immunity protects public governmental entities, but it does not protect officials sued in their individual capacities.) The purpose of official immunity is to allow public officials to make judgments affecting public safety and welfare without the fear of personal liability. However, official immunity does not apply when (1) a public official fails to perform a ministerial duty required of the official by law, or (2) a public official acts in bad faith or with malice. 

Under the first exception, determining whether a duty is ministerial depends in part on whether the official retains any discretion in completing an act. When even slight discretion exists, the duty is not ministerial. Here, the Supreme Court stated the acts of ensuring placement of a protective vehicle and providing the required ongoing training and a safety plan were not clerical or ministerial acts, but were instead inherently supervisory, highly discretionary acts—the kind that official immunity is intended to protect.

Under the second exception, the plaintiffs alleged the supervisors acted maliciously and with bad faith and argued this was sufficient to overcome official immunity, at least at the stage of initial pleadings in the case. However, the Supreme Court noted that the proper standard of review required it to review the facts alleged in the pleadings and not “blindly accept” a plaintiff’s bare legal conclusions. The Court ruled the plaintiffs would have needed to allege the supervisors had an actual intent to cause injury to meet the legal standard for malice, but none of the facts alleged could support a finding that any of the supervisors intended to cause the injuries through a vehicle operated by a third party entering the workspace and striking the employee.

If public officials are sued in their individual capacities in a personal injury claim, this case should improve the odds of presenting a successful defense. Please contact us if you have any questions related to these issues.

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