Redd v. City of Tuskegee (Ex parte City of Tuskegee)
| Decision Date | 27 September 2019 |
| Docket Number | 1180474 |
| Citation | 295 So.3d 625 |
| Parties | EX PARTE CITY OF TUSKEGEE (In re: Nyasha Redd, administrator of Estate of Yvonne Redd, deceased v. City of Tuskegee) |
| Court | Alabama Supreme Court |
Rick A. Howard and April W. McKay of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery, for petitioner.
Ted L. Mann of Mann & Potter, P.C., Birmingham, for respondent.
The City of Tuskegee ("the City"), the defendant below, petitions this Court for a writ of mandamus directing the trial court to vacate its order denying the City's motion for a summary judgment as to negligent inspection and negligent failure to provide hydrant and/or water pressure claims asserted against it and to enter a summary judgment for the City as to those claims on the grounds of both substantive immunity and municipal immunity under § 11-47-190, Ala. Code 1975. We grant the petition and issue the writ.
This case arises from the death of Yvonne Redd ("Yvonne") in a house fire that occurred at a residence located at 804 South Main Street in Tuskegee ("the house") on December 27, 2012. Fred Bascomb, Jr., owned the house, and Yvonne and her sister, Patricia Carlisle, had previously rented the house and had lived there for one or two years. In 2012, they rented the house again, and moved in on or about December 12, 2012.
Yvonne's daughter, Nyasha Redd ("Nyasha"), testified that her mother's health had started deteriorating in 2010 as a result of a series of strokes; that Carlisle and Yvonne had lived together for years; and that, as Yvonne's health deteriorated, Carlisle took care of Yvonne. Nyasha testified that Yvonne could walk aided by a walker and that Yvonne would periodically use a wheelchair to go out.
The evidence presented in this case indicated that the City's building code required rental properties to have hardwired smoke detectors. Willie Smith, the fire marshal for Tuskegee Fire Department ("TFD"), testified that the City building code required the building inspector or the fire marshal for the City to conduct an inspection of a rental property before the utilities could be turned on for that property; that the person conducting the inspection would ensure that smoke detectors were present and functioning; and that a form would be completed after the inspection. Evidence was presented that utilities would not be turned on at a residence if the residence did not have the required functioning smoke detectors.
Nyasha testified that she helped her mother move and that she had the utilities turned on at the rental house. She also testified that she talked with Bascomb as she was waiting to get the utilities turned on. Nyasha further testified that she was at the City utility board's office arranging to have the utilities turned on; that she was to meet Charlie Bowen, a building official for the City, at the house for the inspection; that she was talking to Bascomb on her cellular telephone; that a Ms. Cardwell, an employee of the utility board, was on the telephone with Bowen; that Nyasha was told that she did not have to meet Bowen at the house; that Bascomb told Nyasha that Bowen had gone out to the house; that Bowen had also told Cardwell that everything was "fine and ready to move in"; and that Nyasha was told that the power had been turned on.
The City submitted an inspection form for the house that was signed by Bowen and dated December 14, 2012. The form is titled "Safety Inspection Form" and includes an area to mark whether the property being inspected is a single-family dwelling, a multifamily dwelling, or commercial property. In the first comment section on the form, Bowen included the following note:
There was a checklist on the form that included the following:
Bowen did not mark any of the items on the form. However, the comments section at the end of the form included the following note:
"For tenant safety, Smoke Detectors must be installed by the owner(s)."
The City submitted a document on the letterhead of the City's Department of Building, Engineering, and Planning. The document was dated November 2, 2017, after the commencement of the underlying action, and stated:
(Capitalization in original.) The document appears to include an electronic signature of Bowen. The City also submitted a 2018 affidavit from Bowen in which he stated:
The City also attached an affidavit from Michael McNeil, in which he stated:
Bascomb also testified that there were nine smoke detectors in the house; that the smoke detectors were mounted on the ceiling; that the smoke detectors were hardwired and had battery backups; that McNeil was an electrician who performed electrical work for him; and that McNeil installed the smoke detectors.
Nyasha testified that she visited her mother and Carlisle every day while they were living most currently at the house on South Main Street; that she did not see smoke detectors at the house during her visits; that Yvonne and Carlisle were having electrical problems; that some electrical outlets did not work; that the roof leaked; and that rainwater would come through light fixtures. Nyasha testified that Carlisle had told her that, on the morning of December 27, 2012, she had telephoned Bascomb to complain about the rain coming through the light fixtures; that Bascomb had said he would send his maintenance assistant to see about it; that Carlisle had to go to work that day; that Yvonne had been instructed not to open the door for anyone; and that Bascomb had told Carlisle he would contact her when his maintenance assistant was on his way to the house. Nyasha testified that Joe Ross, a family friend, went to Yvonne's residence that day to feed her lunch; that, although Yvonne could actually feed herself, she could not cook or do anything in the kitchen because she depended on a walker; that Ross warmed up some food in the microwave and gave it to Yvonne; that Ross said that Yvonne had eaten and that everything was fine when he left the house; and that Ross had been gone for about 30 minutes when the fire started.
At approximately 4:15 p.m. on December 27, 2012, the Tuskegee Police Department and TFD were dispatched to the house on a report of a fire. Evidence was presented indicating that an officer with the Tuskegee Police Department and a deputy with the Macon County Sheriff's Department were the first to arrive on the scene. The officers noticed a large amount of smoke coming from the residence and were told that an elderly, bedridden female was inside. Although law-enforcement officers were able to force open the front door, they were not able to make entry because of the amount of smoke. At that time, the first fire engine arrived, and the scene was turned over to TFD.
TFD arrived on the scene at 4:20 p.m., and the City presented evidence indicating that the fire was fully involved at that time. Ultimately, two pumper trucks -- Engine 1 and Engine 2 -- a ladder truck, and 12 fire personnel from TFD responded to the scene. Engine 2 was the first truck to arrive on the scene; Engine 1 arrived right behind it. Sgt. Uralvin Clark and two firefighters, Robert Bryant and Colby Hicks, were on Engine 2. The City presented evidence indicating that Engine 2 had a 1,250-gallon-a-minute pump and a 1,000-gallon tank. Lt. Wayne Brooks, who was acting as a captain at that time, and Sgt. Jason Levett were on Engine 1. The City presented evidence indicating that Engine 1 had a 1,000-gallon-a-minute pump and a 750-gallon tank. Evidence was presented indicating that Engine 2 connected to hydrant 301 located at the corner of South Main and Laslie Street, which was near Tuskegee Intermediate School; that that hydrant was operational at the time; and that that hydrant was a little over 1,300 feet from the house.
Lt. Brooks testified that, when he arrived on the scene, he did a 360-degree inspection of the scene; that the fire had already ventilated before they arrived; and that smoke and flames were "coming all out the roof and everywhere." Lt. Brooks explained:
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