Smitherman v. Marshall County Com'n

• Citation: 746 So.2d 1001
• Parties: Jamie L. SMITHERMAN et al. v. MARSHALL COUNTY COMMISSION et al.
• Decision Date: 27 August 1999
• Court: Supreme Court of Alabama

746 So.2d 1001

Jamie L. SMITHERMAN et al. v. MARSHALL COUNTY COMMISSION et al.

1971866.

Supreme Court of Alabama.

August 27, 1999.

Rehearing Denied October 22, 1999.

Benjamin E. Baker, Jr., and Richard D. Stratton of Hogan, Smith & Alspaugh, P.C., Birmingham, for appellants.

James R. Shaw and R. Gordon Sproule, Jr., of Huie, Fernambucq & Stewart, L.L.P., Birmingham, for appellees.

Lawrence M. Wettermark of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile for amicus curiae Mobile County (on application for rehearing).

James W. Webb, Kendrick E. Webb, and Bart Harmon of Webb & Eley, P.C., Montgomery, for amicus curiae Association of County Commissions of Alabama (on application for rehearing).

David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile, for amicus curiae Alabama Trial Lawyers Ass'n (on application for rehearing).

Frank C. Ellis, Jr., of Wallace, Ellis, Fowler & Head, Columbiana, for amicus curiae Shelby County (on application for rehearing).

Julian D. Butler and George W. Royer, Jr., of Sirote & Permutt, P.C., Huntsville, for amicus curiae Madison County (on application for rehearing).

On Application for Rehearing

PER CURIAM.

The opinion of April 23, 1999, is withdrawn, and the following is substituted therefor.¹ Jamie L. Smitherman sued, by and through her mother, alleging that the defendants Marshall County; the Marshall County Commission; and past and present Marshall County commissioners and the county engineer, acting individually and in their official capacities, had negligently and/or wantonly designed and/or maintained a Marshall County road and that their negligence and/or wantonness had caused a motor-vehicle accident in which Smitherman was severely injured. Smitherman's mother also sued the same defendants. Both plaintiffs made various claims for damages arising from the injuries sustained by Smitherman in the accident. The trial court entered a partial summary judgment for all defendants except the County. It made that summary judgment final, pursuant to Rule 54(b), Ala. R. Civ. P., and the plaintiffs appealed. We affirm in part, reverse in part, and remand.

Facts and Procedural History

On August 4, 1995, Smitherman, a minor, was a passenger in an automobile driven by Robin Kilpatrick. As the automobile traveled along Martling Road in Marshall County, Kilpatrick lost control of the vehicle, which left the roadway, ran upon a pile of dirt, became airborne, and landed in a creek.

Smitherman suffered injuries that rendered her a quadriplegic. She and her mother, Shirley A. Mote, sued Kilpatrick, along with both past and present Marshall County commissioners; the county engineer, Bob Pirando; the Marshall County Commission; and Marshall County. The plaintiffs claim that the Marshall County defendants were under a legal duty to maintain Martling Road; that they had been provided with notice of dangerous conditions on Martling Road; and that they had negligently or wantonly failed to take the action necessary to keep the roadway in a reasonably safe condition.

The plaintiffs moved for a partial summary judgment, seeking, in part, a ruling from the trial court that the statutory governmental-entity damages cap of § 11-93-2, Ala.Code 1975, did not apply to the Marshall County defendants in their individual capacities. Those defendants responded with their own summary-judgment motion.

The trial judge, after holding a hearing on the motions, entered the following order:

"This matter came before the Court on Plaintiffs' Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment.... [T]he Court finds that the Defendants' Motion for Summary Judgment is due to be GRANTED in part and denied in part, and Plaintiffs' Motion for Partial Summary Judgment is due to be DENIED. The Court makes the following rulings of law and fact:

"1. There is no evidence that County Engineer, Bob Pirando, acted in his individual capacity with regard to the issues presented in the Plaintiffs' Complaint. Accordingly, Bob Pirando, in his individual capacity, is dismissed with prejudice.

"2. As stated in Cook v. County of St. Clair, 384 So.2d 1 (Ala.1980), and Calvert v. Cullman County Commission, 669 So.2d 119 (Ala.1995), the Defendant commissioners, in their individual capacities cannot be sued in tort. Accordingly, the commissioners, in their individual capacities, are dismissed with prejudice.

"3. The Plaintiffs have sued the county commissioners and the county engineer, in their official capacities, and the Marshall County Commission, in addition to suing Marshall County, Alabama. However, this Court finds that suing the county commissioners, in their official capacities, the county engineer, in his official capacity, and the Marshall County Commission is only another way of pleading a claim against the entity, Marshall County, Alabama. Calvert v. Cullman County Comm'n, 669 So.2d 119 (Ala.1995); Elmore County Comm'n v. Ragona, 561 So.2d 1092 (Ala.1990). Accordingly, the Marshall County Commission, its county commissioners and the county engineer, in their official capacities, are dismissed with prejudice; however, Marshall County remains as a Defendant.

"4. The court finds that the statutory cap set out in § 11-93-2, Ala.Code 1975, applies to Plaintiffs' claims against Defendant, Marshall County, Alabama.

"5. Defendant, Marshall County, is immune from punitive damages as per § 6-11-26, Ala.Code 1975.

"6. The issues involved in Defendants' Motion for Summary Judgment are novel and there is no just reason for any delay in the entry of final judgment and the Clerk of the Court is hereby ordered and directed to enter this as a final judgment, except as to the remaining claims against Marshall County, on the records of the Clerk of the Circuit Court."

I.

We first consider the trial court's ruling that the county commissioners and the county engineer are not amenable to suit in their individual capacities. The trial court relied on Cook v. St. Clair County, 384 So.2d 1 (Ala.1980), in which this Court held:

"Counties are amenable to suit in tort under Code of Alabama, 1975, § 11-1-2. Because counties, as bodies corporate, act through their governing bodies, the county [commissions, the] commissioners likewise are subject to suit in tort, not in their individual capacities but only in their official capacities."

384 So.2d at 7 (opinion on application for rehearing). It is therefore clear that the summary judgment was properly entered for the commissioners as to the claims against them in their individual capacities.² With regard to the claim against the county engineer in his individual capacity, the plaintiffs present no argument as to why the summary judgment was not proper as to the county engineer, and the record supports that summary judgment as to the county engineer. Consequently, we affirm the judgment as it relates to the county commissioners and the county engineer in their individual capacities.

II.

We next consider the trial court's holding that an action against the county commissioners, in their official capacities; the county engineer, in his official capacity; and the Marshall County Commission is only another way of pleading a claim against Marshall County. The defendants point to Calvert v. Cullman County Commission, 669 So.2d 119, 120 (Ala.1995), in which this Court stated: "[T]he difference between naming a county as a defendant and naming its governing body as a defendant is a difference in nomenclature." Relying on this statement, the defendants contend that the summary judgment was proper as to the claims against the county commission and the county officials, in their official capacities, and in their brief they argue:

"Since suit against the commissioners and the county engineer, in their official capacity, and the county commission is simply a suit against Marshall County, the statutory cap of § 11-93-2, which protects counties, applies to Plaintiffs' claims."

To the extent that Calvert and other cases imply that there is no legal distinction between counties and county commissions, they are incorrect and are overruled. In taking this action, we note that there was disagreement on the Court about the rationale used by the majority in Calvert, and one of the Justices wrote a special concurrence in which he concurred with the result reached in that case but disagreed with the rationale used as it related to the distinction between a county and a county commission:

"[A] `county commission,' which was previously called a `board of revenue,' is the governing body of the county, and is not the county itself. A county commission is similar to a city council or the state legislature. The county commission is the entity, of course, that governs the county, and in many counties the probate judge is the chairman of the county commission. For example, to sue a county requires presentment of an itemized, verified claim to the county commission within 12 months of the accrual of the claim, and the commission's denial or reduction of the claim within 90 days. See §§ 6-5-20, 11-12-5, 11-12-6, and 11-12-8, Ala.Code 1975; see also Health Care Auth. v. Madison County, 601 So.2d 459 (Ala.1992)

.

"There are other statutory functions and powers exercised by county commissions. For example, if a person wants a permit, the county commission has the power to decide the merits of the permit request and render what could be called a final decision, subject, of course, to limited, deferential review on the ultimate issue. See Taxpayers & Citizens of Lawrence County v. Lawrence County, 273 Ala. 638, 143 So.2d 813 (1962)

.... [T]he only statutory authority county commissions have regarding claims against a county for the county's alleged negligence is to receive and file them. The county commission cannot finally adjudicate the merits of the person's claim. That power is reserved to the courts. Steadham v. Sanders, 941 F.2d 1534...