Hollis v. City of Brighton

• Decision Date: 09 January 2004
• Citation: 885 So.2d 135
• Parties: Benjamin HOLLIS and Diana Hollis v. CITY OF BRIGHTON.
• Court: Alabama Supreme Court

885 So.2d 135

Benjamin HOLLIS and Diana Hollis v. CITY OF BRIGHTON.

1012381.

Supreme Court of Alabama.

January 9, 2004.

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

Thomas S. Hale of Burgess & Hale, L.L.C., Birmingham, for appellee.

JOHNSTONE, Justice.

The plaintiffs Benjamin Hollis and Diana Hollis, husband and wife ("the plaintiffs"), appeal a summary judgment for the defendant City of Brighton ("the City"). We affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.

After a fire destroyed the plaintiffs' house, the plaintiffs sued the City for failing to extinguish the fire and for preventing the plaintiffs from trying to extinguish it. The plaintiffs claimed that the City was directly liable for negligence on the theory that the City, by creating a fire department, undertook a duty to provide the plaintiffs with skillful fire protection and then breached this duty through the unskillful acts or omissions of the City-created fire department in responding to the fire. In addition, the plaintiffs claimed that the City was vicariously liable for negligence or wantonness based on the same unskillful acts or omissions of the members of the fire department. Finally, the plaintiffs claimed that the City was vicariously liable for the negligence or wantonness of a City policeman in allegedly ordering the plaintiffs not to reenter the burning house to fight the fire.

In moving for a summary judgment, the City asserted that it was entitled to immunity from the plaintiffs' claims. First, the City claimed substantive immunity from the plaintiffs' claims for direct liability and vicarious liability for the acts or omissions of the fire department and its firefighters and from the claim for vicarious liability for the act of the policeman. Second, the City asserted that the Voluntary Service Act, § 6-5-336, Ala.Code 1975, immunized the volunteer firefighters individually and that their immunity protected them from liability and thereby protected the City from vicarious liability for the firefighters' torts, if any. Third, the City similarly asserted that § 6-5-338(a), Ala.Code 1975, immunized the policeman individually and that his immunity protected him from liability and thereby protected the City from vicarious liability for his tort, if any. In support of the summary-judgment motion, the City submitted an affidavit by the mayor, testifying in pertinent part:

"4. The City of Brighton is a small town located in Jefferson County, Alabama with a population of approximately 4,500.

"5. At the time of the fire on December 2, 1999, Brighton operated a volunteer fire department which consisted of approximately 9 local residents who served in a strictly volunteer capacity.

"6. The Brighton Volunteer Fire Department had 3 fire trucks.

"7. No firemen stayed at the station, and the volunteers kept their uniforms at home.

"8. At the time of the fire forming the basis of plaintiffs' complaint, when a fire was reported to the dispatcher the following procedures were followed: 1) the dispatcher would flip a master switch and the firemen's pagers would sound, giving the location of the fire; 2) the dispatcher would turn on the fire siren; 3) the firemen would hear the pager, get dressed at home or on the way, and report to station; 4) the first two firemen who arrived would take the fire truck and go to the fire; 5) other firemen would take other trucks as they arrived at the fire station."

In response, the plaintiffs argued that: (1) substantive immunity was not applicable to their claims of direct and vicarious liability of the City for the failures of the fire department and its firefighters or to their claim of vicarious liability of the City for the act of the policeman, (2) § 6-5-336 immunity was not applicable because the firefighters were not "volunteers" within the meaning of the Voluntary Service Act, and (3) § 6-5-338(a) immunity was not applicable to the policeman's ordering the plaintiffs to stay out of the house because his order was not a discretionary act. The plaintiffs cited Williams v. City of Tuscumbia, 426 So.2d 824 (Ala.1983), and Ziegler v. City of Millbrook, 514 So.2d 1275 (Ala.1987), in support of the argument that substantive immunity was not available to the City.

The plaintiffs argued that the firefighters were not volunteers because the City paid the firefighters a stipend for expenses of $10 per fire. In support of this argument, the plaintiffs submitted deposition testimony from two of the firefighters. The two firefighters testified about the volunteer status of the firefighters, in pertinent part:

"Q. Whose job is it when a fire is called in, to make sure that there's enough people to respond to man the fire trucks and to use the equipment to put out a fire?

"A. That's hard because there is no job. It's not a job. We work as a team and you come out there. Whoever's available to respond to come out, they'll come out.

"Q. And if there's nobody available, nobody responds?

"A. If nobody's there, nobody will respond.

"....

"Q. Well the firefighters that do go out to fight a fire, they get paid what? $10.00 per fire?

"A. Yeah. That's for gas, not for fighting the fire.

"Q. But you get ten dollars?

"A. Yes.

"....

"Q. Do you get paid more than the other firefighters as assistant [chief]?

"A. All the guys get the same.

"....

"Q. So the only gas that you use in responding to a fire would be two miles, a mile there and a mile back, right?

"A. Yeah.

"....

"Q. But, I mean, it doesn't cost you ten dollars worth of gas to drive from City Hall and back, right?

"A. That's what we get for gas."

"Q. Now how many people were on the active list of firefighters on December 2nd, 1999?

"A. There was eight of us.

"....

"Q. That were available for duty on December 2nd?

"A. That — They were volunteer firemen. All of them didn't respond — All of them don't respond to every fire because they have private jobs.

"Q. Depends on who's available?

"A. That's it."

"Q. How much do you get paid for answering each fire?

"A. We don't get paid. They just give us a little small donation once a month, ten dollars.

"Q. They give you ten dollars per fire?

"A. That's it."

The trial court entered a summary judgment "based upon substantive and discretionary immunity." On appeal, the plaintiffs argue that this Court should reverse the summary judgment for the same reasons the plaintiffs argued to the trial court against the summary-judgment motion. Likewise, the City argues that this Court should affirm the summary judgment for the same reasons the City argued to the trial court in favor of the summary-judgment motion.

Issues

The dispositive issues are: (1) whether the City, by creating a volunteer fire department, undertook a duty to provide skillful fire protection, (2) whether § 6-5-336 protects the City from vicarious liability for the unskillful acts or omissions of volunteer firefighters in responding to a fire, and (3) whether § 6-5-338(a) protects the City from vicarious liability for the policeman's ordering the plaintiffs not to reenter the burning house to try to extinguish the fire.

Law and Analysis

1. General Principles of Appellate 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 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).

A defendant who moves for a summary judgment on the ground of an affirmative defense "`must support his motion with credible evidence, using any of the materials specified in Rule 56(c), [Ala.] R. Civ. P. ("pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits"). The movant's proof must be such that he would be entitled to a directed verdict if this evidence was not controverted at trial.' "Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). On the other hand, a defendant who moves for a summary judgment on the ground of "a failure of the [plaintiff's] evidence... must indicate where the [plaintiff's] case suffers an evidentiary failure." Kennedy v. Western Sizzlin Corp., 857 So.2d 71, 78 (Ala.2003). If such a summary-judgment motion "does not inform the trial court (and the [plaintiff]) of a failure of the [plaintiff's] evidence on a fact or issue, no burden shifts to the [plaintiff] to present substantial evidence on that fact or issue. Therefore, summary judgment for a failure of proof not asserted by the motion for summary judgment is inappropriate." Tanner v....