Hilliard v. City of Huntsville

• Decision Date: 09 August 1991
• Citation: 585 So.2d 889
• Parties: Steve Wilson HILLIARD, as personal representative and administrator of the Estates of Darlene Cobb Hilliard, Santana Darlene Hilliard, and Steve William Hilliard, deceased v. CITY OF HUNTSVILLE. 1900279.
• Court: Alabama Supreme Court

Page 889

585 So.2d 889

Steve Wilson HILLIARD, as personal representative and administrator of the Estates of Darlene Cobb Hilliard, Santana Darlene Hilliard, and Steve William Hilliard, deceased v. CITY OF HUNTSVILLE.

1900279.

Supreme Court of Alabama.

Aug. 9, 1991.

Douglas J. Fees of Morris, Smith, Siniard, Cloud & Fees, Huntsville, for appellant.

Clyde Alan Blankenship, Kerri J. Wilson and Mary Ena J. Heath, Huntsville, for appellee.

Kenneth Smith, Montgomery, for amicus curiae Ala. League of Municipalities, in support of the appellee.

INGRAM, Justice.

Steve Wilson Hilliard sued the City of Huntsville ("the city"), alleging that the city had negligently inspected the wiring in an apartment complex occupied by Hilliard and his family and that an electrical fire at that apartment complex had claimed the lives of his wife and his two children just over a month after the city's inspection.

In addition to the city, Hilliard named as defendants in the suit the owner of the apartment complex, Philip Kromis; the electrical contractor that installed the wiring, Landman Electric Company, Inc.; and the Utilities Board of the City of Huntsville ("Huntsville Utilities"). Hilliard effected a settlement with Kromis and Landman Electric, and they were dismissed as defendants, leaving the city and Huntsville Utilities as the remaining defendants.

Hilliard's complaint, as finally amended, included two causes of action against the city: (1) negligence and/or wantonness and (2) nuisance. In response to Hilliard's complaint, the city filed a motion to dismiss or, in the alternative, for judgment on the pleadings, and a motion for summary judgment. After oral argument on the motions, the trial court entered a judgment on the pleadings in favor of the city as to both of Hilliard's causes of action. ¹ Hilliard appealed.

The issue raised in this appeal is whether the trial court erred in entering a judgment on the pleadings on Hilliard's negligence and/or wantonness claim and on the nuisance claim.

With regard to the negligence and/or wantonness claim, we recognize that before liability for negligence can be imposed upon a governmental entity, there must first be a breach of a legal duty owed by that entity. Shearer v. Town of Gulf Shores, 454 So.2d 978 (Ala.1984). In determining whether a claim is valid, the initial focus is upon the nature of the duty. Rich v. City of Mobile, 410 So.2d 385 (Ala.1985). There must be either an underlying common law duty or a statutory duty of care with respect to the alleged tortious conduct.

For a number of years in Alabama, municipal liability was predicated upon the negligent performance of a proprietary, as opposed to a governmental, function. See, e.g., Hillis v. City of Huntsville, 274 Ala. 663, 151 So.2d 240 (1963); City of Bay Minette v. Quinley, 263 Ala. 188, 82 So.2d 192 (1955). Where the function in question was conferred not for the immediate benefit of the municipality, but rather " 'as a means to the exercise of the sovereign power for the benefit of all citizens,' " no liability would extend to a municipal corporation for a failure to use its power well or for an injury caused by using it badly. Hillis, 274 Ala. at 667, 151 So.2d 240, quoting City of Bay Minette v. Quinley, 263 Ala. 188, 82 So.2d 192 (1955).

However, in 1975, this Court abolished the doctrine of municipal immunity in Jackson v. City of Florence, 320 So.2d 68 (Ala.1975). The abolition of sovereign immunity in Jackson did not create any new causes of action for activities that are inherently governmental in nature, but rather gave full effect to a municipal liability statute enacted by the legislature many years earlier. See § 1207, Ala.Code 1907. That statute, presently codified at § 11-47-190, Ala.Code 1975, provides, in part:

"No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty...."

The Court's ruling in Jackson eliminated the distinction between governmental and proprietary functions, making municipalities liable for negligent performance of a number of activities for which they had previously been immune, thus allowing "the will of the legislature, so long ignored, [to] prevail." 320 So.2d at 74. The Jackson Court expressed the hope that the legislature would provide, through legislation, additional limitations and protections for governmental bodies.

However, instead of the legislature, it was this Court that next addressed the extent of a municipality's liability for damage resulting from its agent's negligent inspection or negligent failure to inspect; that was in Rich v. City of Mobile, supra. The allegations by the plaintiffs in Rich are virtually identical to the allegations by Hilliard in the present case. The Rich complaint alleged that city plumbing inspectors had failed to require the installation of proper materials; had failed to assure that no leaks existed; and had failed to require that the plumbing be installed according to the standard plumbing code. The plaintiffs alleged that the city had made three negligent preliminary inspections and had wholly failed to make a final inspection of the lines and connections. The plaintiffs attempted to characterize those actions as the breach of a duty to the individual homeowners, to which liability attaches.

The Rich Court initially noted that cases from other jurisdictions considering the duty owed by municipal inspectors had resulted in two distinct lines of reasoning. The Court cited Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976), Adams v. State, 555 P.2d 235 (Alaska 1976), and Campbell v. City of Bellevue, 85 Wash.2d 1, 530 P.2d 234 (1975), as cases in which municipalities had been held liable for negligently inspecting a building. Other jurisdictions had rejected municipal liability for negligent inspections. The Court cited Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972), Besserman v. Town of Paradise Valley, Inc., 116 Ariz. 471, 569 P.2d 1369 (Ariz.App.1977), and Georges v. Tudor, 16 Wash.App. 407, 556 P.2d 564 (1976), for this latter proposition.

In reaching its holding in Rich, the Court followed the latter line of above-noted cases and refused to hold that the duty imposed upon city plumbing inspectors was owed to individual homeowners. Consequently, the breach of such a duty, the Court held, would not support an action for damages. The Court ruled that substantive immunity applies to those public service activities of municipalities "so laden with the public interest as to outweigh the incidental duty to individual citizens." Rich, 410 So.2d at 387-88. The Court further opined that public policy considerations

"prevent the imposition of a legal duty, the breach of which imposes liability, in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services."

Id. at 387.

In the present case, Hilliard argues that the trial court erred in relying upon Rich because, he argues, that case was limited to facts identical to the facts of that case. Hilliard contends that the facts in this case do not fall within the ambit of the Rich holding. We disagree.

The present case is precisely the type of case in which the substantive immunity rule applies. The city, like most municipalities, elects to perform electrical inspections as a benefit to itself and to the general public. While individuals receive a benefit from these inspections, that benefit is merely incidental to the benefit derived by the citizens in general. Although an individual driver benefits by the state's testing and licensing of drivers of motor vehicles, the state in so testing and licensing drivers does not guarantee to individual drivers that all licensed drivers are safe drivers. See Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn.1975).

In arguing that Rich is inapplicable to the present case, Hilliard attempts to draw a distinction between sewer...