City of Prichard v. Kelley

• Decision Date: 30 May 1980
• Citation: 386 So.2d 403
• Parties: CITY OF PRICHARD, Alabama, a Municipal Corporation v. Thomas Lonnie KELLEY, Jr. 78-420.
• Court: Alabama Supreme Court

Page 403

386 So.2d 403

CITY OF PRICHARD, Alabama, a Municipal Corporation v. Thomas Lonnie KELLEY, Jr.

78-420.

Supreme Court of Alabama.

May 30, 1980.

Rehearing Denied July 25, 1980.

Ralph Kennamer, Mobile, for appellants.

Benjamin H. Kilborn and Grey Redditt, Jr. of Kilborn & Redditt, Mobile, for appellee.

MADDOX, Justice.

What duty does a city owe to persons using its streets to maintain a traffic control sign at an intersection once a sign has been placed there by the city? That is the central issue on this appeal.

The facts necessary to decide the issue are not substantially controverted. On July 7, 1976, the plaintiff/appellee Thomas Lonnie Kelley, Jr., received serious injuries when a motorcycle he was riding collided with an automobile driven by one Ellarene Robinson at the intersection of Broadway Street and Main Boulevard in Prichard, Alabama. Plaintiff sued Mrs. Robinson and also sued the City of Prichard, claiming that the City was negligent in failing to maintain a stop sign or traffic signal at the intersection in question. The evidence clearly revealed that at one point in time there had been a stop sign at the intersection on Broadway Street. Unquestionably, there was no stop sign in place on the day of the accident.

The City of Prichard contends that it did not have any duty to the plaintiff to erect a stop sign at the intersection of Broadway Street and Main Boulevard, and argues that even if it had at some time erected a stop sign at the intersection, it was under no legal duty to maintain the sign indefinitely. The City contends that its responsibilities in erecting and maintaining traffic signs are entirely discretionary. In short, the City asks this question: Did the failure of the City to maintain the stop sign on Broadway at Main constitute a "failure to remedy some defect in the streets, alleys, public ways or buildings after the same had been called to the attention of the council . . . or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council"? Code 1975, § 11-47-190.

In responding to the question posed by the City, we recognize that Code 1975, § 11-47-190, imposes upon corporate municipalities certain affirmative duties with regard to the maintenance of streets, alleys and public ways. The express language of that statute speaks in terms of a basic responsibility to act with reasonable diligence and due care in alleviating potential defects in public ways; however, the pragmatic application of that language has led to the expression of a much more generalized legal duty.

Prior to the enactment of § 11-47-190, the subject of responsibility for street maintenance was a matter governed almost exclusively by judicial decision. The courts of this state were led in their decisions on the subject by the compelling language of the United States Supreme Court in Chicago City v. Robbins, 2 Black 418, 17 L.Ed. 298 (1862). In Robbins, the court stated:

"It is well settled that a municipal corporation having the exclusive care and control of the streets, is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances that might prove dangerous; and if this plain duty is neglected, and any one is injured, it is liable for the damages sustained. The corporation has, however, a remedy over against the party that is in fault, and has so used the streets as to produce the injury, unless it was also a wrong doer."

On the basis of this holding, this Court came to hold that municipalities, by virtue of their exclusive authority to maintain streets, are laden with the responsibility of keeping their streets in repair and in a condition reasonably safe for their intended use. Albrittin v. Mayor & Aldermen of Huntsville, 60 Ala. 486 (1877); City Council of Montgomery v. Wright, 72 Ala. 411 (1882); Town of Cullman v. McMinn, 109 Ala. 614, 19 So. 981 (1895). It was the affirmative duty expressed in these cases which later formulated the basis and substance of § 11-47-190. Once incorporated into the statute, the responsibility, once attributed solely to the municipalities' governmental authority, rose to the level of a legal duty. In addressing the provisions of Ala.Code, Tit. 37, § 502 (1940), the precursor to Code 1975, § 11-47-190, this Court stated:

" * * * Prior to that enactment the upkeep of the streets was a governmental function and not a legal duty, except as otherwise provided by some special law. Albrittin v. Mayor & Aldermen of City of Huntsville, 60 Ala. 486. Thereafter it has been a legal duty, imposing responsibility upon the city for negligence in performing it. The power and authority to control streets was made the exclusive prerogative of the city, which created a corresponding and coextensive duty and therefore a civil liability for the consequences of a default therein. City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; City of Birmingham v. Whitworth, 218 Ala. 603, 119 So. 841."

Oliver v. Water Works & Sanitary Sewer Board, 261 Ala. 234, 236-237, 73 So.2d 552 553-554 (1954). It is now fully recognized that the duty imposed upon cities to keep their public ways free of defects is but the expression of a broader responsibility to exercise ordinary and reasonable care in keeping streets in a reasonably safe condition for travel. McCarroll v. City of Bessemer, 289 Ala. 449, 268 So.2d 731 (1972); City of Florence v. Stack, 275 Ala. 367, 155 So.2d 324 (1963); Johnson v. City of Opelika, 260 Ala. 551, 71 So.2d 793 (1954). The question then becomes one of whether the maintenance of traffic control signs is a part of the City's responsibility to keep its streets safe for use by the public.

The City cites Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689 (1936), in support of the proposition that a city's duty to keep its streets in a reasonably safe condition does not include any duty to maintain traffic control signs. In Dorminey, the court specifically confronted the issue of whether the City of Montgomery could be held liable for injuries resulting from an intersectional automobile collision allegedly caused by the defective operation of a traffic light. At 232 Ala. 49, 166 So. 690-691, the court stated:

"We have consistently held that a municipality is under the legal duty to keep its streets and sidewalks in a reasonably safe condition for the use of the public, and for the negligent failure to perform this duty it is liable in tort to a person thereby injured. This duty to keep its streets and sidewalks in a reasonably safe condition we have held to be a corporate, rather than a public, duty; that its officers or agents, while engaged in the performance of this duty, were engaged in a ministerial, rather than a governmental, function. City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542; City of Birmingham v. Muller, 197 Ala. 554, 73 So. 30; Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320; City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169; City of Selma v. Perkins, 68 Ala. 145, 148.

"We have also held that persons on streets of a municipality may assume that the ways are free from unlawful obstructions or dangerous defects, so long as ordinary care on their part does not disclose such defects. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797.

"However, we are of the opinion that the obstructions or defects relate to physical obstructions or defects."

Since a defective traffic light could not realistically be categorized as a physical obstruction or defect in the street, the City could not be held liable for any negligence in failing to keep its streets in a reasonably safe condition. In the same way, a missing stop sign does not constitute any physical defect in the street; therefore, under the principles espoused in Dorminey, we must conclude that the City of Prichard has not been negligent in maintaining its streets. It, therefore, has not breached its responsibilities under Code 1975, § 11-47-190.

In reaching this holding, we fully recognize that courts in companion jurisdictions have reached different conclusions on the same point of law. See generally Annot. 34 A.L.R.3d 1008. Some jurisdictions have reasoned that traffic control devices, such as stop signs, are very real physical appurtenances to public ways and their negligent maintenance may constitute a defect in the street. Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 (1966). Numerous others hold that the responsibility of maintaining such devices is necessarily included within the municipality's duty to keep streets in a reasonably safe condition. O'Hare v. City of Detroit, 362 Mich. 19, 106 N.W.2d 538 (1960); Arizona State Highway Department v. Bechtold, 105 Ariz. 125, 460 P.2d 179 (1969); Smith v. City of Preston, 97 Idaho 295, 543 P.2d 848 (1975). Thorpe v. City and County of Denver, 30 Colo.App. 284, 494 P.2d 129 (1972). Still others have held municipalities responsible for maintaining traffic control signs upon principles of nuisance. Fankhauser v. City of Mansfield, 19 Ohio St.2d 102, 249 N.E.2d 789 (1969); Town of Fort Ogelthorpe v. Phillips, 224 Ga. 834, 164 S.E.2d 141 (1968). Our conclusion is based solely upon our reading of the statute and how that statute has been interpreted by the courts of this state. On that limited ground, we must conclude that the City of Prichard is not liable for negligent maintenance of a street; however, that does not preclude liability on grounds falling outside the statute, liability which might be based entirely upon principles of ordinary negligence.

In determining whether the City might be liable outside the statute, we feel compelled to look again to the opinion of the court in Dorminey...