City of Mobile v. Havard

Citation268 So.2d 805,289 Ala. 532
Decision Date28 September 1972
Docket Number1 Div. 689
PartiesThe CITY OF MOBILE, etc., et al. v. Ruby W. HAVARD, Administratrix, etc.
CourtAlabama Supreme Court

Donald F. Pierce, and W. Ramsey McKinney, Jr., Mobile, for appellant, City of Mobile.

James J. Duffy, Jr. and John N. Leach, Jr., Mobile, for appellant Palmer & Baker, Engineers, Inc.

Gallalee, Denniston & Edington, and Horace Moon, Jr., Mobile, for appellees.

SOMERVILLE, Justice.

Appellee Ruby W. Havard as administratrix of the estate of Henry N. Havard, deceased, brought an action in the Circuit Court of Mobile County, Alabama against eight defendants seeking damages for the death of her husband Henry N. Havard who died as the result of an automobile accident in the Bankhead Tunnel. The initial complaint was amended and various defendants dismissed so that by the time of trial the complaint consisted of two counts numbered 5 and 6 and the City of Mobile and Palmer & Baker Engineers, Inc. were the only remaining defendants.

On October 17, 1968 Henry N. Havard was driving his automobile eastwardly through the Bankhead Tunnel in Mobile, Alabama. He reached a point approximately midway through the tunnel and stopped his car behind a long line of cars when an overloaded soybean truck with defective brakes came down the western incline out of control and crashed into the rear of the Havard automobile. The impact set off a chain reaction ultimately piling up ten vehicles. Gasoline fires broke out including one at the front and one at the rear of the Havard car. A fire alarm was sent to the Mobile Fire Department located just outside the western tunnel entrance and some of the occupants of the involved vehicles with several tunnel guards began fighting the fire with equipment maintained in the tunnel. Testimony indicated that their efforts were ineffectual due to defects or inadequacies of the equipment. The Mobile Fire Department had equipment and men at the scene within minutes and the fires were promptly extinguished. Not until the firemen arrived was it discovered that Havard was trapped, semi-conscious, in his smoke-filled automobile. He had received severe burns and respiratory tract injury and died three days later.

In her complaint the plaintiff alleged that her husband's death was proximately caused by the defective and inadequate equipment maintained in the Bankhead Tunnel. Plaintiff's theory against the City of Mobile was that it had negligently maintained its fire equipment located in the tunnel and that such negligence had proximately caused her husband's death. The driver and the owner of the truck and the owner of the load of soybeans on the truck were originally made parties defendant but were voluntarily stricken by the plaintiff before trial. Plaintiff asserts liability against Palmer & Baker Engineers, Inc. (Palmer & Baker) on the ground that it, as the firm employed by the City of Mobile to inspect the Bankhead Tunnel and its equipment on an annual basis, either negligently failed to ascertain such inadequate and defective condition of the fire-fighting equipment or negligently failed in its reports of such inspections to call attention to said condition.

The case was tried for six days and resulted in a judgment on a jury verdict against the joint defendants in the amount of $75,000. Motions for new trial being denied, both defendants now appeal.

Appellee insists that the appellant City of Mobile waived all or many of its assignments of error by failure to comply with the provisions of Supreme Court Rule 9. Appellee also contends that this appellant has waived all of its assignments of error because it failed to include in its brief a summary of the oral testimony relevant to its arguments as required by Rule 9. With this contention we cannot agree. There are two appellants in this cause and it must be noted that appellant City of Mobile joined in this appeal after it was instigated by the other appellant, Palmer & Baker. Appellant Palmer & Baker included a summary of the relevant testimony in its brief. Appellant City of Mobile supplemented that summary as necessary for its arguments in its brief. We hold that this was sufficient to comply with the purpose and intent of Rule 9. Appellee also argues that appellant City of Mobile waived those assignments of error which it did not specifically argue in its brief. We agree with appellee on this argument, and in accord with Rule 9 have not considered any of said appellant's assignments of error which were not argued in its brief.

The appellant City of Mobile, hereinafter referred to as the City, argues in its first proposition of law, which encompasses its assignments of error 2 through 8, that the City is governmentally immune from suits arising out of maintenance or operation of fire-fighting equipment. Demurrers of the City to counts 6 and 7 based on its claimed immunity were overruled and its pleas raising the same issue were demurred or charged out. In support of its contention the City relies primarily on the case of Long v. City of Birmingham, 161 Ala. 427, 49 So. 881. In that case the plaintiff Long had been injured when he fell from an extension ladder while in the performance of his duties as a fireman for the City of Birmingham. Long brought suit against said city under the provisions of the Employer's Liability Act. The trial court sustained demurrers to the complaint based on the defendant's claim that in furnishing fire-fighting apparatus and operating its fire department, the city was performing a governmental function and therefore immune from tort liability.

The appellee's answer to the above argument is Title 37, § 502, Code of Ala. 1940 (Recompiled 1958), which places liability on a municipality for any injury which occurs through the neglect, carelessness, or failure to remedy any defect in the streets, public ways, etc., after either actual or constructive notice of such defect.

It is undisputed that the roadway through the Bankhead Tunnel is part of the Mobile street system. Therefore the issue to be resolved is whether or not the fire-fighting equipment maintained in the tunnel is in fact a part of the street or public way so as to attach liability on the City under § 502, supra, for any defect in the equipment.

We do not think it was the intent of the legislature to give § 502 such a broad application. In Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689, this court recognized the necessity of distinguishing between defects in a street for which a municipality may be held liable, and those for which it may not. We there refused to call a defective traffic light a defect in the street and recovery against the City of Montgomery was denied. Our holding was based on § 502 being inapplicable because the maintenance of traffic signals is an immune governmental function and not a part of the maintenance of streets, a nonimmune ministerial function. We think the same distinction between ministerial and governmental functions must be made here and that fire-fighting equipment stored in the tunnel is no more a component or an integral part of the street running through said tunnel than is a traffic light. It follows that a defect in such equipment is not a defect in the street for which the City can be held liable under the provisions of § 502. The remaining authorities cited by appellee on this point are not applicable since each dealt with physical defects in streets or sidewalks themselves or obviously component parts thereof.

We conclude that the complaint as last amended failed to state a cause of action against the defendant-appellant City of Mobile and that the trial court erred in failing to sustain said appellant's demurrer which properly raised the issue of governmental immunity.

The merits of the other assignments of error of said appellant City of Mobile need not be considered here since the judgment against it must be reversed in accord with this opinion.

The appellant Palmer & Baker raises two principal questions in its numerous assignments of error: first, whether plaintiff's complaint is sufficient against this appellant's demurrer; and second, whether the evidence presented at trial was sufficient to submit the case to the jury. Said demurrer challenged the complaint as failing to state a cause of action against the defendant Palmer & Baker in that it did not establish a duty owed by said defendant to plaintiff's intestate, nor did it disclose the breach of any duty which proximately caused the injury complained of in the complaint.

The law is clear that in all cases founded on actionable negligence, three elements are necessary to the sufficiency of the complaint: (1) the existence of some duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to fulfill that duty; and (3) an injury to the plaintiff proximately caused from such failure of the defendant. When all of these elements are brought together, we have actionable negligence. The absence of any one of them renders a complaint bad or the evidence insufficient. Stokely-Van Camp, Inc. v. Ferguson, 271 Ala. 120, 122 So.2d 356; Alabama Great Southern R Co. v. Green, 276 Ala. 120, 159 So.2d 823; Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So.2d 274.

In the complaint now before us, the pertinent allegations to show the existence of this defendant's duty are: that defendant Palmer & Baker was under contract with the City of Mobile to conduct annual inspections of the Bankhead Tunnel, including the fire-fighting equipment located therein, and to make its recommendations to the City for any repairs, replacements, additions, etc., which were in its opinion required for the continued operation of the tunnel; that this defendant knew that members of the public would be driving through said tunnel and knew that they could be seriously injured or killed if...

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