Hilburn v. Utilities Bd. of Foley (In re Utilities Bd. of Foley)

• Court: Alabama Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Hilburn v. Utilities Bd. of Foley (In re Utilities Bd. of Foley), 265 So.3d 1273 (Ala. 2018)
• Decision Date: 28 June 2018
• Docket Number: 1161168
• Parties: EX PARTE The UTILITIES BOARD OF the CITY OF FOLEY, Alabama, d/b/a Riviera Utilities; Tom DeBell; James Wallace; Kevin Saucier; and Roby Tomlin (In re: Charles D. Hilburn, Jr., and Christa Hilburn v. The Utilities Board of the City of Foley, Alabama, d/b/a Riviera Utilities; Tom DeBell; James Wallace; Kevin Saucier; and Roby Tomlin)

265 So.3d 1273

EX PARTE The UTILITIES BOARD OF the CITY OF FOLEY, Alabama, d/b/a Riviera Utilities; Tom DeBell; James Wallace; Kevin Saucier; and Roby Tomlin

(In re: Charles D. Hilburn, Jr., and Christa Hilburn

v.The Utilities Board of the City of Foley, Alabama, d/b/a Riviera Utilities; Tom DeBell; James Wallace; Kevin Saucier; and Roby Tomlin)

1161168

Supreme Court of Alabama.

June 28, 2018

C. Winston Sheehan, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery; and D. Kirby Howard, Jr., of Ball, Ball, Matthews & Novak, P.A., Mobile, for petitioners.

W. Lloyd Copeland and Richard H. Taylor of Taylor Martino, P.C., Mobile, for respondents.

PER CURIAM.

The Utilities Board of the City of Foley, Alabama, d/b/a Riviera Utilities ("Riviera Utilities"), and Tom DeBell, James Wallace, Kevin Saucier, and Roby Tomlin (those individuals are hereinafter collectively referred to as "the Riviera employees") are the defendants in a personal-injury action filed by Charles D. Hilburn, Jr., and his wife, Christa Hilburn, that is pending in the Baldwin Circuit Court. Riviera Utilities and the Riviera employees petition this Court for a writ of mandamus directing the Baldwin Circuit Court to vacate its order denying their motion for a summary judgment as to the claims filed against them by the Hilburns and to enter a summary judgment in their favor. As to the Riviera employees, we grant the petition and issue the writ. As to Riviera Utilities, we deny the petition.

I. Facts and Procedural History

Riviera Utilities is a legislatively created municipal utilities board and a public corporation under the provisions of Act No. 175 adopted at the 1951 regular session of the legislature, as amended (now codified as § 11–50–310 et seq., Ala. Code 1975 ). Riviera Utilities provides electrical, water, wastewater-treatment, natural-gas, and TV-cable services within the corporate limits of the City of Foley. It also provides electrical and other services to other areas of Baldwin County.

On July 22, 2014, Riviera Utilities was one of eight Baldwin County entities that received an "811 ticket," also known as a line-locate ticket, through a computer program known as "KorWeb." Anyone planning to begin excavation is required by statute to give notice to a utility or a one-call-notification center before beginning the excavation work. Alabama 811 is the one-call-notification center for Alabama, commonly known as the "Call Before You Dig" program. Once it receives a call, Alabama 811 electronically notifies its members that have underground utilities, by means of an 811 ticket, about excavation work to be performed so they can mark those utilities before excavation begins. Riviera Utilities employs personnel known as "line-locate technicians," whose job it is to locate and mark underground lines at excavation sites. Riviera Utilities received approximately 16,000 line-locate calls through the Alabama 811 system in 2014, approximately 20,000 in 2015, and approximately 50,000 in 2016. In the early months of 2017, Riviera Utilities received approximately 9,500 line-locate calls through the Alabama 811 system.

The 811 ticket Riviera Utilities received on July 22 stated that "bridge construction" would take place on Baldwin County Road 52 in Robertsdale. Gulf Equipment Corporation was in charge of a bridge-repair project on County Road 52 pursuant to a contract between Gulf Equipment and the Baldwin County Highway Department calling for repairs to an existing box culvert, which is similar to a storm-drain pipe. The construction site was not within the corporate limits of the City of Foley. Riviera Utilities owned, operated, and maintained power lines in the area where the bridge was being repaired; however, Riviera Utilities was not a party to the bridge-repair contract. The power poles near the bridge-repair project contained several power lines. The top three lines on those power poles are 46–KV lines leased by Alabama Power Company; the bottom lines are Riviera Utilities' 7200–KV primary lines.

Kris Deese, a line-locate technician employed by Riviera Utilities, received the 811 ticket generated for the bridge-repair project on July 22. He went to the project site on July 23 to locate and mark any underground lines. While Deese was at the site, he saw a bridge, but there was no equipment present and no one was working. Locating no underground utilities owned or operated by Riviera Utilities at the bridge-repair project site, Deese did not mark anything regarding underground utilities or note the presence of the overhead power lines.

At the time of the accident causing Charles's injuries, DeBell was Riviera Utilities' general manager and CEO, Wallace was its operations manager, Saucier was its risk manager, and Tomlin was its superintendent of safety and training. DeBell worked at Riviera Utilities since 1989. Wallace had been the operations manager at Riviera Utilities since 2010, supervising all five operating divisions of Riviera Utilities—gas, water, electric, wastewater treatment, cable TV, and safety. Saucier had worked at Riviera Utilities since October 2012; the line-locate technicians employed by Riviera Utilities work in the risk and safety department under Saucier's supervision. Tomlin worked at Riviera Utilities from 2009 through the end of 2015. He was a superintendent whose responsibilities were storage, warehousing and inventory, and safety.

On July 31, 2014, Charles was employed by Gulf Equipment on the bridge-repair project. Charles's co-employee, Randall Hayes, was operating a track hoe¹ to drive steel pilings into the ground when the track hoe and/or a steel piling came in contact with an uninsulated overhead electrical power line. The electrical current traveled from the track hoe and/or piling into the body of the track hoe while Charles was touching the body of the track hoe, causing the electrical charge to enter into his hand, travel through his body, and exit via his leg. Charles was permanently disabled by the electrocution injuries he suffered, including a brain injury and memory loss.

The Hilburns sued Riviera Utilities and the Riviera employees in their individual capacities. In the complaint as last amended, the Hilburns alleged:

"22. Prior to July 31, 2014, Riviera [Utilities] and the [Riviera employees] received actual or constructive notice that bridge construction was about to occur on County Road 52 in Baldwin County, Alabama, and that [Charles's] employer, Gulf Equipment Corporation, would be performing the bridge construction.

"23. Riviera [Utilities] and the [Riviera employees] received actual or constructive notice from Alabama [811] on July 22, 2014, that Gulf Equipment Corporation would be performing bridge construction on County Road 52 in Baldwin County, Alabama.

"24. Riviera [Utilities] and the [Riviera employees] received actual or constructive notice that bridge construction was being performed on County Road 52 in Baldwin County, Alabama, when, based upon information and belief, Riviera [Utilities] trucks owned and operated by Riviera [Utilities] drove upon the construction site and observed the construction activities at or near Riviera [Utilities'] uninsulated, energized lines.

"25. Riviera [Utilities] and the [Riviera employees] reasonably anticipated that Gulf Equipment Corporation employees working at the bridge-construction site may come in contact with Riviera [Utilities'] uninsulated, energized power lines."

The Hilburns then asserted claims alleging that Riviera Utilities and the Riviera employees acted negligently and wantonly:

"a. By not insulating the power lines at the bridge-construction site.

"b. By not de-energizing the power lines at the bridge-construction site.

"c. By not re-routing the power lines at the bridge-construction site so the workers engaged in the bridge construction would not come in contact with them.

"d. By not employing fuses or circuit breakers that could immediately de-energize the power lines at the bridge-construction site if they came in contact with people or foreign objects."

The Hilburns alleged that the Riviera employees were "acting within the line and scope of their capacity as agents, servants, or employees of Riviera" Utilities at the time of the accident and that they were "responsible for taking and/or implementing appropriate safety measures when Riviera [Utilities] had actual or constructive notice that persons may come in contact with its uninsulated, energized power lines." The Hilburns also asserted a loss-of-consortium claim on behalf of Christa.

Riviera Utilities and the Riviera employees answered, asserting, among other defenses, discretionary-function immunity, substantive immunity, State-agent immunity, municipal immunity, sovereign immunity, qualified immunity, and absolute immunity. The Hilburns filed a motion for a partial summary judgment as to certain affirmative defenses raised by the Riviera employees asserting "statutory caps on damages and various forms of immunity" or, in the alternative, to strike those defenses. Riviera Utilities and the Riviera employees then filed a motion for a summary judgment as to all of the Hilburns' claims. In responding to that summary-judgment motion, the Hilburns stated that they did not oppose the entry of a summary judgment in favor of DeBell, Wallace, and Tomlin or the entry of a summary judgment in favor of Saucier as to the wantonness claim against him. The Hilburns argued, however, that Saucier was not entitled to a summary judgment as to the negligence claim against him. Moreover, they argued, Riviera Utilities was not entitled to a summary judgment in its favor. Nevertheless, after the trial court heard oral argument, it denied both summary-judgment motions as to all claims. Riviera Utilities and the Riviera employees then filed this petition for a writ of mandamus.

II. Standard of Review

" ‘ "While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the

...