Nix v. Myers, 012221 ALSC, 1170224

Docket Nº1170224
Opinion JudgeSTEWART, Justice.
Party NameAnthony Nix and the City of Haleyville v. John William Myers
Judge PanelParker, C.J., and Bolin, Wise, and Sellers, JJ., concur. Shaw, Bryan, Mendheim, and Mitchell, JJ., dissent. SHAW, Justice (dissenting). MITCHELL, Justice (dissenting).
Case DateJanuary 22, 2021
CourtSupreme Court of Alabama

Anthony Nix and the City of Haleyville


John William Myers

No. 1170224

Supreme Court of Alabama

January 22, 2021

Appeal from Marion Circuit Court (CV-15-900152)

STEWART, Justice.

Anthony Nix, a police officer for the City of Haleyville ("the City"), and the City appeal from a judgment entered by the Marion Circuit Court ("the trial court") on a jury verdict in favor of John William Myers. For the reasons set forth below, we reverse the judgment and remand the cause for a new trial.

Facts and Procedural History

Myers commenced an action in the trial court, asserting claims of negligence, wantonness, and negligence per se against Officer Nix and, based on the doctrine of respondeat superior, the City. Myers also asserted that the City had negligently and/or wantonly hired, trained, and supervised Officer Nix.

After completing discovery, Officer Nix and the City moved for a summary judgment, and Myers filed a response in opposition to their motion. The trial court entered a partial summary judgment that, in pertinent part, determined the following: "4. The Court finds that this lawsuit was properly brought against Officer Nix .... [Nix and the City's] Motion for [a] Summary Judgment is denied on that ground.

"5. [Myers] has failed to present sufficient evidence of negligent hiring, training and supervision to support his claim. [Nix and the City's] motion is GRANTED as to that count.


"9. Evidence has been submitted that demonstrates Officer Nix drove his police vehicle over a double yellow traffic line in violation of the Code of Alabama § 32-5A-7 and § 32-5A-86(a) (1975).

"10. Further, the parties have submitted opposing and contradicting evidence as to whether Officer Nix's conduct violated the City of Haleyville's police policies and procedures.

"11. Lastly, the submitted evidence presents a material and unanswered question of fact as to whether Officer Nix was responding to an emergency and operating an authorized emergency vehicle as defined by Ala. Code § 32-5A-7 (1975) at the time of the incident made the basis of this suit.

"12. As such, there are multiple genuine issues of material fact as to whether Officer Nix was performing a function that would entitle him to immunity and/or performing a discretionary function at the time [Myers's] claims arose.

"13. [Officer Nix and the City's] Motion for [a] Summary Judgment on the basis of state agent and peace officer immunity is therefore DENIED. Because Officer Nix is not entitled to [a] summary judgment on these grounds, neither is the City of Haleyville."

(Capitalization in original.) The trial court held a jury trial in August 2017.

The following facts are pertinent to the resolution of the issues in this appeal. On May 18, 2015, the Haleyville police department received a report of a disturbance or a fight within the town limits of Bear Creek involving an intoxicated person who may have had a gun. Sergeant Michael Glasheen, Officer Nix's supervisor, asked Officer Nix to "go and assist the Bear Creek officer, or at least be in the vicinity in case he called for help," because Bear Creek's police force was a "single-man operation." Officer Nix responded to the call, which he considered to be an emergency. While he was traveling northbound on Highway 13 with his emergency lights activated, Officer Nix passed Phyllis Chrader's automobile while in a no-passing zone. Officer Nix testified that, when he made the pass, he was traveling either 45 or 50 miles per hour and that he had believed that he could pass Chrader's vehicle safely without endangering any person or property.

Janice Palmer was driving her white sport-utility vehicle southbound on Highway 13 when she observed Officer Nix's vehicle traveling in the northbound lane. According to Palmer, Officer Nix passed Chrader's vehicle and, when his vehicle was "[m]aybe as much as 75 yards" away from hers in the southbound lane, she "started trying to get off the road, braking to get off the road" because she was afraid their vehicles would collide. Palmer testified that she was not sure of the distance between her vehicle and Officer Nix's vehicle when Officer Nix returned to the northbound lane but that they "didn't have much space once he got back in his lane." She testified, however, that, when Officer Nix's vehicle passed by her, "if [she] wasn't stopped, [she] was nearly stopped." She also testified that Officer Nix's vehicle "would have had to have been" back in the northbound lane when he passed her because they did not collide.

Myers was traveling on a 2001 Yamaha "cruiser" motorcycle behind Palmer's vehicle. Myers testified that Palmer "slammed on [her] brakes, and my first reaction was to get on my brakes. So I got on my brakes. My right -- my rear brake locked up, and so I tried to feather it out to keep from going into a wreck, sliding out, whatever term you want to use. The next thing I can remember at that point is the [emergency medical technicians] or someone telling me not to move."

Myers acknowledged that he had applied the brakes hard enough to go into a skid and that he had lost control of the motorcycle.

During the trial, Myers's counsel questioned numerous witnesses, including Haleyville Police Chief Kyle Reogas, Sgt. Glasheen, and Officer Nix about § 32-5A-7, Ala. Code 1975, and § 32-5A-86, Ala. Code 1975, 1 which are part of the Alabama Rules of the Road Act, § 32-5A-1 et seq., Ala. Code 1975, and sought to admit copies of those statutes into evidence. The attorney for Officer Nix and the City objected to their admission, stating: "That's the law. That's the duty of the Court, not to submit law as evidence that's taken back to the jury room. The law comes from the bench." Section 32-5A-86 provides: "(a) The Department of Transportation and local authorities are hereby authorized to determine those portions of any highway under their respective jurisdictions where overtaking and passing or driving to the left of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle shall obey the directions thereof.

"(b) Where signs or markings are in place to define a no-passing zone as set forth in subsection (a) no driver shall at any time drive on the left side of the roadway within such no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.

"(c) This section does not apply under the conditions described in Section 32-5A-80(a)(2), [Ala. Code 1975, ] nor to the driver of a vehicle turning left into or from an alley, private road, or driveway."

It is undisputed that Officer Nix passed Chrader's vehicle in a no-passing zone. Officer Nix and the City asserted that § 32-5A-7 permitted Officer Nix to violate traffic rules, including § 32-5A-86, at the time of Myers's accident because, they asserted, Officer Nix was driving an authorized emergency vehicle while responding to an emergency call. Section 32-5A-7, entitled "Authorized emergency vehicles," provides: "(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

"(b) The driver of an authorized emergency vehicle may:

"(1) Park or stand, irrespective of the provisions of [the Alabama Rues of the Road Act];

"(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

"(3) Exceed the maximum speed limits so long as he does not endanger life or property;

"(4) Disregard regulations governing direction of movement or turning in specified directions.

"(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of Section 32-5-213[, Ala. Code 1975, ] and visual requirements of any laws of this state requiring visual signals on emergency vehicles.

"(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."

The trial court admitted copies of the statutes as evidence and permitted Myers to question witnesses about their interpretation of those statutes. See note 1 and accompanying text, supra. When charging the jury, the trial court stated:

"You heard the term 'Rules of the Road.' Now, Rules of the Road is a law passed by the legislature that governs how people drive their motor vehicles. These laws are codified --which means they're stuck in a book -- in [Chapter] 32-5A of the Code. This is [Chapter] 32-5A (indicating). These are the Rules of the Road. Many of you had to learn some, if not most of these in driver's education. There are general rules of the road that apply to all drivers, and I'm going to give you some of those rules that may apply in this case, and I also will discuss with you at this time specifically the Section 32-5A-7, which is the Authorized Emergency Vehicle section. I think this was Plaintiff's Exhibit 1 or maybe 2. It was 1, I believe. You'll have a copy of this section in the jury room, but I will charge you now as to the applicable provisions in this Code section. It reads as follows: 'The driver of an authorized...

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