City of Birmingham v. Brasher

• Decision Date: 19 May 1978
• Citation: 359 So.2d 1153
• Parties: CITY OF BIRMINGHAM v. Cammie Olivia BRASHER. 77-108.
• Court: Alabama Supreme Court

Page 1153

359 So.2d 1153

CITY OF BIRMINGHAM v. Cammie Olivia BRASHER.

77-108.

Supreme Court of Alabama.

May 19, 1978.

Rehearing Denied June 23, 1978.

Thomas P. Anderson, Birmingham, for appellant.

S. Shay Samples, Earl R. Peyton and Hogan, Smith & Alspaugh, Birmingham, for appellee.

FAULKNER, Justice.

This is an appeal from a judgment awarding damages to Brasher, in a suit against the City, alleging negligent maintenance of a sidewalk in a public park. We affirm.

On December 26, 1974, Cammie Olivia Brasher fell and sustained hip injuries, while walking on a sidewalk located on the perimeter of Woodrow Wilson Park. She fell when she stubbed her foot on an elevated portion of concrete walkway.

This specific sidewalk Wilson Park is criss-crossed with walkways leads from a public street to the entrance of the Jefferson County Courthouse. Not only were there elevated portions of concrete, but also there were cracks and depressions in the sidewalk. There was testimony that these conditions had existed for a long period of time prior to Mrs. Brasher's fall. There had been previous injuries suffered by persons as a result of stumbling and falling on the sidewalk. The Engineering Department, as well as the City Legal Department, had been warned on numerous occasions, by the Jefferson County Director of General Services of the delapidated condition of the sidewalk. Yet, the City did nothing to improve or to repair it. As late as August 16, 1974, the Jefferson County Commissioner of Public Improvements wrote a letter to a City Councilman stating:

"The sidewalk from Seventh Avenue on the Woodrow Wilson Park side of the Courthouse is absolutely in pitiful condition. The concrete is broken, sunken, and many times covered with mud. It is not only unsightly but is absolutely dangerous!

" . . . I sure would appreciate your forwarding this request to the proper department and using your influence to see that it is taken care of."

The issue before this court is whether the City is immune from suit, and liable for damages resulting from the negligent maintenance of the sidewalk. On this issue we are presented with an attack upon the viability of Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632 (1969), where this court held the City of Birmingham immune from liability for a defect in a walkway within Woodrow Wilson Park under Tit. 62, § 660, Code of Alabama 1940 (Recomp.1958). ¹ Seven years later, Justice Bloodworth, in a specially concurring opinion in Walker v. City of Birmingham, 342 So.2d 321 (Ala.Sup.Ct.1976), addressed the Jones case:

"However, I think the tort counts are good and therefore I concur in the present judgment of reversal as to those counts. I do not think the statutes provide governmental immunity from tort to the City of Birmingham in suits by persons injured on sidewalks maintained by the city in public parks.

"Tit. 37, § 502, Code of Alabama 1940 and City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542 (1914), specifically provide for municipal tort liability for injuries suffered due to defects in sidewalks, inter alia, cf. Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632 (1969). Although citing this rule of law, Jones refuses to hold that '(a) public way in a park is still a public way.' It expressly holds that a public sidewalk entirely within a public park is not an 'ordinary public sidewalk' and therefore falls within the governmental immunity granted the city in the operation of a public park. I would overrule Jones.

"I would hold that the exception in Tit. 62, § 660, Code of Alabama 1940, that governmental immunity does not extend to 'injuries arising out of defects in highways . . .' applies here. Sidewalks are part of the system of public highways notwithstanding their being totally encompassed by a public park. The intention of the legislature was to except injuries therefrom from the then existing governmental immunity, in my judgment."

Walker was a suit for injuries sustained on a sidewalk in the Jimmy Morgan Zoo in Birmingham. Justice Embry, writing the primary opinion, stated that although a contract action was available, the City was immunized from tort suits. He was joined by Justice Beatty. However, the remainder of the court had somewhat differing views. Justice Bloodworth was of the opinion that the plaintiffs had an actionable tort claim, but that a contract action was improper. Justices Maddox and Faulkn...