Hollis v. City of Brighton

• Decision Date: 28 July 2006
• Docket Number: No. 1040073.,1040073.
• Citation: 950 So.2d 300
• Parties: Benjamin HOLLIS and Diane Hollis v. CITY OF BRIGHTON.
• Court: Alabama Supreme Court

950 So.2d 300

Benjamin HOLLIS and Diane Hollis v. CITY OF BRIGHTON.

No. 1040073.

Supreme Court of Alabama.

July 28, 2006.

Stan Brobston of Brobston & Brobston, P.C., Bessemer; and Albert Lipscomb of Lipscomb & Lipscomb, Bessemer, for appellants.

Thomas S. Hale and G. Meador Akins of Burgess & Hale, L.L.C., Birmingham, for appellee.

PARKER, Justice.

Benjamin Hollis and Diane Hollis appeal from an order of the Jefferson Circuit Court granting a motion filed by the City of Brighton ("the City") for a summary judgment on the Hollises' vicarious-liability claim against it based on the actions of a police officer for the City. We affirm.

I. Factual and Procedural History

Police Officer Derwin Davis was on patrol at 1:56 a.m. on December 2, 1999, when he saw flames at a house at 4010 Keyes Avenue in Brighton. After notifying the fire department, Officer Davis entered the house and woke the occupants, Benjamin Hollis and Diane Hollis and their two sons, who had not been awakened by the smoke alarm. Officer Davis told the Hollis family to leave the house and wait outside for the arrival of the fire department. Mr. Hollis initially resisted Officer Davis's directive and attempted to extinguish the fire, which had started in the master bedroom, with a blanket. In so doing, he sustained second-degree burns that required hospital treatment and surgery, and he was out of work for approximately one month.

Although he finally followed Officer Davis's command to leave the house, Mr. Hollis continued to plead for permission to reenter the house to try and extinguish the fire. Officer Davis refused to permit Mr. Hollis to reenter the house, and the Hollises and Officer Davis remained outside. The fire department arrived about 45 minutes after they had left the house. Because of the delay, the house and its contents were totally destroyed. The following day, Mr. Hollis expressed his gratitude to Officer Davis for saving the lives of his family.

On May 22, 2000, the Hollises sued the City, alleging that the negligent, careless, and unskillful acts of the fire department in responding to the fire and the negligence or wantonness of Officer Davis in not allowing Mr. Hollis to reenter the house caused them to suffer damage. Mr. Hollis claimed that the fire initially involved only the curtains on the window in his bedroom and that the fire in the house could easily have been extinguished had Officer Davis permitted him to remain in or to reenter the house.

The City moved for a summary judgment based on State-agent immunity. The trial court granted the motion on April 16, 2001. The Hollises appealed, and this Court affirmed the summary judgment as to all claims except the claim for vicarious liability based on the alleged actions of Officer Davis; as to that claim, we reversed and remanded, stating:

"We notice a difference between certain critical language in the statute, § 6-5-338(a), [Ala.Code 1975,] and certain critical language in the [Ex parte] Cranman [792 So.2d 392 (Ala.2000),] restatement describing the conduct immunized. That is, the statute refers to 'conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties' while immune category (4) of the [Ex parte] Cranman restatement refers to conduct `exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons.' In the particular case now before us, we need not decide whether or how the difference between the language of the statute and the language of the Cranman restatement affects the scope of the immunity, since the record does not establish without dispute or as a matter of law that the act of the policeman in ordering the plaintiffs not to reenter the burning house to fight the fire fits within either description of immune conduct. Nor does the record establish without dispute or as a matter of law that the act of the policeman fits within any of the other Cranman categories of immune conduct. Thus, we cannot rely on the § 6-5-338(a) immunity, as described by either the statute itself or the Cranman restatement, to affirm the summary judgment on the plaintiffs' claim for vicarious liability for the act of the policeman. See Ex parte Rizk, 791 So.2d [911] at 914 [(Ala.2000)]:

"`Dr. Rizk's treatment of his patient, the plaintiff's decedent, does not fit within any of the categories of immune State-agent conduct contained in the Cranman restatement. Therefore, Dr. Rizk is not immune.'

"The policeman may or may not have been negligent in ordering the plaintiffs not to reenter the burning house to fight the fire. Thus, the City may or may not be liable for his conduct. That issue is not before us because the summary-judgment motion of the City did not raise the factual merits of the plaintiffs' claims. See Liberty National [Life Ins. Co. v. University of Alabama Health Servs., 881 So.2d 1013 (Ala.2003),] and Tanner [v. State Farm Fire & Cas. Co., 874 So.2d 1058 (Ala.2003)]. Accordingly, while we must reverse the summary judgment on this claim, we express no opinion about the factual merits."

Hollis v. City of Brighton, 885 So.2d 135, 143-44 (Ala.2004) ("Hollis I"). On remand, the City filed a new motion for a summary judgment, asserting that Officer Davis was entitled to immunity under the fourth category of the restated rule governing State-agent immunity set out in Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000), and under §§ 6-5-338(a) and 13A-10-6, Ala.Code 1975. The trial court entered a summary judgment for the City on the vicarious-liability claim, and the Hollises appeal.

II. Standard of Review

"`We review a summary judgment de novo.' Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). `Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law."' Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).

"`In determining whether the nonmovant has created a genuine issue of material fact, we apply the "substantial-evidence rule" — evidence, to create a genuine issue of material fact, must be "substantial." § 12-21-12(a), Ala.Code 1975. "Substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).'

"Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala. 2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala. 2001). See Ex parte Helms, 873 So.2d 1139, 1143 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001)."

Hollis I, 885 So.2d at 140.

III. Legal Analysis

The issue the Hollises present on this appeal is whether the trial court erred in granting the City's motion for a summary judgment on the basis that the City was immune from liability for the actions of Officer Davis. The Hollises seek a jury trial to determine whether Officer Davis acted negligently in ordering the Hollises to leave the house when Mr. Hollis believed he could extinguish the fire.

The trial court granted the City's motion for a summary judgment by making the following entry on the case-action-summary sheet:

"The Court received argument on July 20, 2004 on the Summary Judgment and finds there to be no issue of fact that is in dispute and that [the City] is entitled to a judgment as a matter of law. Summary Judgment granted for the [City]. Costs taxed as paid."

As noted earlier, this Court stated in Hollis I:

"[T]he record does not establish without dispute or as a matter of law that the act of the policeman in ordering the [Hollises] not to reenter the burning house to fight the fire fits within either description of immune conduct. Nor does the record establish without dispute or as a matter of law that the act of the policeman fits within any of the other Cranman categories of immune conduct. Thus, we cannot rely on the § 6-5-338(a) immunity, as described by either the statute itself or the Cranman restatement, to affirm the summary judgment on the [Hollises'] claim for vicarious liability for the act of the policeman. . . .

"`. . . .'

"The policeman may or may not have been negligent in ordering the [Hollises] not to reenter the burning house to fight the fire. Thus, the City may or may not be liable for his conduct. That issue is not before us because the summary-judgment motion of the City did not raise the factual merits of the [Hollises'] claims. See Liberty National and Tanner, supra. Accordingly, [although] we must reverse the summary judgment on this claim, we express no opinion about the factual merits."

885 So.2d at 144. In summary, this Court in Hollis I said (1) that the record did not establish immunity as a matter of law, either under Ex parte Cranman, supra, or under § 6-5-338(a) (the peace-officer-immunity statute) and (2) that the factual merits of the Hollises' negligence claim were not raised in their motion for a summary judgment.

A finding of immunity, however, precludes a claim based in negligence.

"Peace-officer immunity, like State-agent immunity,² does not provide immunity from liability for the commission of an intentional tort, but only for negligence in the exercise of judgment. See Ex parte Turner, 840 So.2d 132, 136 (Ala.2002)(`"a State agent shall not be immune from civil liability in his or her personal capacity . . . (2) when the State agent acts willfully,...