Ex parte City of Gulf Shores, 1200366

CourtSupreme Court of Alabama
Writing for the CourtBRYAN, JUSTICE.
Decision Date30 September 2021
PartiesEx parte City of Gulf Shores v. City of Gulf Shores) (In re: Ronald Paulinelli, as father and next friend of Sophia Paulinelli, a minor
Docket Number1200366

Ex parte City of Gulf Shores

(In re: Ronald Paulinelli, as father and next friend of Sophia Paulinelli, a minor
v.

City of Gulf Shores)

No. 1200366

Supreme Court of Alabama

September 30, 2021


(Baldwin Circuit Court, CV-19-900718)

PETITION FOR WRIT OF MANDAMUS

BRYAN, JUSTICE.

The City of Gulf Shores ("the City") petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to dismiss tort claims brought against the City. The City contends that the claims are barred by the recreational-use statutes found at § 35-15-1 et seq., Ala. Code 1975. We deny the petition.

In June 2018, Sophia Paulinelli ("Sophia"), who was a minor at the time, was injured while walking on a wooden boardwalk owned by the City. The boardwalk runs over beach property and allows pedestrians to access the public beach from a point slightly south of the intersection of West Beach Boulevard and 13th Street. In addition to owning the boardwalk, the City owns the beach property on which the boardwalk sits. Sophia was walking on the boardwalk behind a man when the man stepped on a board, causing the board to spring up from the boardwalk. The dislodged board had a screw protruding from it, and the board and screw fell on Sophia's foot, impaling the screw in her big toe.

In May 2019, Ronald Paulinelli ("Ronald"), as Sophia's father and next friend, sued the City and fictitiously named defendants. Against the City, Ronald alleged claims of negligence and wantonness. On January 18, 2021, seven weeks before the case was set to go to trial, the City moved for a summary judgment, arguing that it is entitled to immunity under the recreational-use statutes found at § 35-15-1 et seq. Ronald filed a response to the summary-judgment motion, arguing that the recreational-use statutes do not control in this case. In support of his argument, Ronald cited certain cases that we will discuss below. The materials before us do not indicate that the City ever addressed in the circuit court the cases relied on by Ronald. The circuit court denied the summary-judgment motion without explanation, and the City then filed its mandamus petition with this Court.

"The writ of mandamus is an extraordinary legal remedy Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala. 1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002)."

Ex parte Davis, 930 So.2d 497, 499 (Ala. 2005).

As noted, in moving for a summary judgment, the City argued that it is entitled to immunity under the recreational-use statutes found at § 35-15-1 et seq. The City first cited protections given to landowners allowing recreational use on their lands under Article 1 of the recreational-use statutes, consisting of §§ 35-15-1 through -5, which was enacted in 1965. The City mostly focused, however, on the broad protections given to landowners allowing noncommercial public recreational use on their lands under Article 2, consisting of §§ 35-15-20 through -28, which was enacted in 1981. The City observed that § 35-15-22, Ala. Code 1975, provides:

"Except as specifically recognized by or provided in this article, an owner of outdoor recreational land who permits non-commercial public recreational use of such land owes no duty of care to inspect or keep such land safe for entry or use by any person for any recreational purpose, or to give warning of a dangerous condition, use, structure, or activity on such land to persons entering for such purposes."

The City further noted that § 35-15-23, Ala. Code 1975, provides:

"Except as expressly provided in this article, an owner of outdoor recreational land who either invites or permits non-commercial public recreational use of such land does not by invitation or permission thereby
"(1) Extend any assurance that the outdoor recreational land is safe for any purpose
"(2) Assume responsibility for or incur legal liability for any injury to the person or property owned or controlled by a person as a result of the entry on or use of such land by such person for any recreational purpose; or
"(3) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed."

The City argued that, as the owner of the outdoor recreational land on which Sophia had been injured, it is entitled to immunity under the recreational-use statutes. The City acknowledged that § 35-15-24, Ala. Code 1975, provides an "actual-knowledge" exception to such immunity but argued that there was no evidence indicating that the exception applies here.[1]

In response to the summary-judgment motion, Ronald argued that the recreational-use statues do not control in this case. Ronald argued that the boardwalk in this case is a "public way," like a sidewalk, that the City has a duty to maintain regardless of the recreational-use statutes. In support of his argument, Ronald cited a series of cases concerning whether a city could be liable for injuries caused by falls on sidewalks located in city parks. Ronald cited City of Birmingham v. Brasher, 359 So.2d 1153 (Ala. 1978), which involved a plaintiff who tripped and fell on a sidewalk in a city park. In Brasher, this Court concluded that the city was not immune from a claim alleging that the city had negligently maintained the sidewalk located within the park. The Court in Brasher relied on Walker v. City of Birmingham, 342 So.2d 321 (Ala. 1976), which Ronald also cited in his response. Noting the "somewhat atypical posture" of the decision in Walker, the Court in Brasher clarified that the actual opinion of the Court in Walker was Justice Bloodworth's opinion concurring specially in that case. 359 So.2d at 1155. In Walker, Justice Bloodworth concluded that the city should not be immune to tort claims based on the alleged failure to maintain a paved walkway in a public zoo. Justice Bloodworth also stated that he would have overruled Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632 (1969), which also involved a fall in a public park; the Court in Brasher acknowledged that the Court in Walker had in fact overruled Jones through Justice Bloodworth's special writing. The Court in Jones acknowledged that "[a] municipal corporation is liable for injuries suffered due to defects in sidewalks, streets and public ways, where it has not exercised reasonable care." 284 Ala. at 278, 224 So.2d at 633. However, in concluding that the city in Jones was immune, the Court in that decision noted that "[i]t is also a well-recognized rule in this state that the maintaining by a municipal corporation of public squares, parks, playgrounds and recreational facilities is a governmental function, and that a city is not liable for injuries which result from the negligent operation of the same." Id.

Brasher and Walker are central to Ronald's argument that the City is not entitled to immunity under the recreational-use statutes.[2] The City argues to this Court that those decisions are not controlling and that it is entitled to immunity under the recreational-use statutes. The applicability of the cases relied on by Ronald is a key issue before us. However, nothing in the materials before us indicates that the City ever presented to the circuit court the arguments that it now presents to us regarding the applicability of those decisions. This Court will not grant relief to a petitioner or an appellant based on an argument presented for the first time to this Court. See State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala. 2005) (stating that "[t]his Court cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration"); and Ex parte...

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