Fernando v. City of Chickasaw
| Decision Date | 17 March 2023 |
| Docket Number | 1210384,1210392 |
| Parties | Carlos Fernando Reixach Murey, as administrator of the Estate of Carlos Lens Fernandez, deceased v. City of Chickasaw, Michael E. Reynolds, Cynthia Robinson Burt, Arellia Taylor, and George Taylor |
| Court | Alabama Supreme Court |
Appeals from Mobile Circuit Court (CV-18-901354 and CV-19-903361)
Carlos Fernando Reixach Murey, as administrator of the estate of Carlos Lens Fernandez, deceased, appeals from a summary judgment entered in two separate actions by the Mobile Circuit Court ("the trial court") in favor of the City of Chickasaw, Michael E. Reynolds, Cynthia Robinson Burt, Arellia Taylor, and George Taylor ("the defendants"). For the reasons discussed herein, we dismiss appeal no. 1210384 and affirm the judgment in appeal no. 1210392.
According to the allegations in the complaints and the evidence submitted in support of, and in opposition to, the summary-judgment motions, on May 27, 2016, at approximately 2:00 a.m., Sgt. George Taylor ("Sgt. Taylor"), a police officer employed by the Chickasaw Police Department discovered an automobile on the shoulder of the on-ramp to an interstate highway. Carlos Lens Fernandez ("Lens") was passed out inside the automobile, and the automobile's engine was running. After he failed to complete various field sobriety tests, Lens acknowledged that he was intoxicated. Sgt. Taylor arrested Lens for driving under the influence and, with assistance from Officer Gregory Musgrove, transported Lens to the Chickasaw City Jail ("the jail").
At the jail, Sgt. Taylor attempted to conduct a breath test to determine Lens's blood-alcohol level, but Lens repeatedly fell asleep or lost consciousness. Sgt. Taylor then called Sgt. Phillip Burson into the room to assist. Sgt. Taylor and Sgt. Burson were able to conduct a breath test on Lens, and the results of the test showed Lens's blood-alcohol level was .12%. At approximately 3:11 a.m., Sgt. Taylor and Sgt Burson took Lens to a jail cell and placed him on his back on a cot. Lens did not advise Sgt. Taylor or any other person that he had any medical issues or that he needed medical attention. According to both Sgt. Taylor and Sgt. Burson Lens appeared to be intoxicated, and nothing about their encounter with Lens indicated to them that Lens needed medical attention.
Arellia Taylor ("Jailer Taylor") was the jailer/dispatcher on duty at the time Lens was booked into the jail. Jailer Taylor wrote the following concerning Lens on a jail log "Need photo, medical questions & changing out, & printing" and "Draeger .12, Unable or too intoxicated to stay up and use phone, answer questions, get finger printed or change clothes upon arrest." At approximately 6:00 a.m., Cynthia Robinson Burt ("Jailer Burt") took over as the jailer/dispatcher. Because of Lens's condition and apparent inability to answer questions, neither Jailer Taylor nor Jailer Burt fully completed a medical-screening form pertaining to Lens.
Jailer Burt checked on Lens when she first began her shift, and she subsequently monitored Lens through a video-monitoring system. At 8:38 a.m., Jailer Burt checked on Lens, but he did not respond to Jailer Burt's oral commands. Jailer Burt summoned Officer Robert Wenzinger and asked him to check on Lens. Officer Wenzinger stated that, when he checked Lens, he could not find a pulse and noticed that Lens was cool to the touch on his arm and neck. Jailer Burt notified her supervisor of the situation and dispatched emergency medical services. At 8:50 a.m., personnel with the Chickasaw Fire Department arrived at the jail and began attempts to resuscitate Lens. Lens was pronounced dead at 9:14 a.m. Lens's autopsy report listed the cause of death as "hypertensive and atherosclerotic cardiovascular disease."
On May 26, 2018, pursuant to § 6-5-410, Ala. Code 1975, Murey commenced a wrongful-death action ("the first action") against the City of Chickasaw ("the City"); Michael E. Reynolds, the public-safety director for the City; Jailer Burt; and numerous fictitiously named defendants; the first action was assigned case no. CV-18-901354. Murey also asserted various federal claims in the complaint. On June 15, 2018, the named defendants in the first action filed a joint notice of removal to the United States District Court for the Southern District of Alabama ("the federal district court").
While the first action was pending in the federal district court, Murey filed an amended complaint in which he, among other things, intentionally omitted the fictitiously named defendants because the federal district court had previously indicated that it would strike those defendants. See Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (). The named defendants in the first action moved for a summary judgment. On November 26, 2019, the federal district court entered a summary judgment in favor of those defendants on the federal claims and dismissed Murey's state-law wrongful-death claim, over which it had exercised supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a), without prejudice.
On December 24, 2019, in accordance with 28 U.S.C. § 1367(d), Murey commenced a second wrongful-death action in the trial court ("the second action"); that action was assigned case no. CV-19-903361. Section 1367(d) provides:
"The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period."
In addition to the defendants he had named in the first action, Murey also named Jailer Taylor and Sgt. Taylor, a married couple, as defendants. On December 25, 2019, Murey filed in the trial court a motion to reinstate the first action and to consolidate the second action with the first action; the trial court granted that motion. Murey also purported to substitute the Taylors for fictitiously named defendants that had been designated in the original complaint in the first action.
On January 29, 2020, the defendants filed an answer in the second action in which they asserted various affirmative defenses. On July 9, 2020, the Taylors filed in the second action a motion to dismiss, asserting that the claims against them were barred by § 6-5-410(d), Ala. Code 1975, which requires wrongful-death actions to be commenced within two years of the decedent's death, and that neither the complaint in the second action naming them as defendants nor Murey's purported substitution of them for fictitiously named defendants designated in the original complaint in the first action related back to the filing of the original complaint in the first action. Murey filed a response in which he asserted that he had properly substituted the Taylors for fictitiously named defendants under Rule 9(h) and Rule 15(c)(4), Ala. R. Civ. P., and that the claims against them related back to the filing of the original complaint in the first action. On January 15, 2021, the trial court entered an order denying the Taylors' motion to dismiss filed in the second action.[1]
On August 2, 2021, Murey filed a "first amended complaint" in both the first action and the second action, and the defendants filed a joint answer in both actions. Thereafter, the defendants moved for a summary judgment. The defendants asserted that Murey's claims against the individual defendants were barred by State-agent immunity and that the City was not vicariously liable. The defendants also argued that Murey had failed to show that any act of the defendants had caused Lens's death. The defendants later filed an additional summary-judgment motion in which they argued that Murey's claims against the Taylors were barred under § 6-5-410(d) because those claims had not been asserted within two years of Lens's death. The defendants supported their motions with, among other evidence, deposition and affidavit testimony from the defendants, Murey's expert witnesses, and other witnesses; copies of the jail's operations policy and prisoner-transport policy; the autopsy and toxicology report related to Lens; the jail log related to Lens's booking; and the written description of the City's jailer/dispatcher job duties.
Murey filed a response in opposition the defendants' summary-judgment motions to which he attached, among other evidence, deposition testimony from his expert witnesses: Dr. Thomas Shull (a jail-administration expert), Dr. Anthony Maggio (an emergency-medicine expert), Dr. Michael Marlin (an emergency-medicine and medical-toxicology expert), and Ahna Stolfi (a paramedic). Murey also submitted a State Bureau of Investigation report, other deposition and affidavit testimony, the defendants' responses to interrogatories, Reynolds's employment contract with the City, and a prehospital-care summary completed by Stolfi. The substance of Murey's arguments and experts' opinions was that the defendants had negligently prevented Lens from receiving a medical evaluation from trained medical personnel and that, if Lens had been provided medical attention, he would have survived because he would have been in a hospital where he could have received close monitoring and rapid intervention.
On January 28, 2022, the trial court entered a summary judgment in both actions in favor of all the defendants. Murey timely filed a notice of appeal each action. This Court consolidated the appeals.
Appeal no. 1210384 is an appeal from the judgment...
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