Tutwiler Drug Co., Inc. v. City of Birmingham

• Decision Date: 06 August 1982
• Parties: TUTWILER DRUG COMPANY, INC., and Streetlife, Inc. v. The CITY OF BIRMINGHAM, Alabama, Mayor Richard Arrington, etc., and the Individual Members of the City Council, etc. 81-369.
• Court: Alabama Supreme Court

Page 102

418 So.2d 102

TUTWILER DRUG COMPANY, INC., and Streetlife, Inc. v. The CITY OF BIRMINGHAM, Alabama, Mayor Richard Arrington, etc., and the Individual Members of the City Council, etc.

81-369.

Supreme Court of Alabama.

Aug. 6, 1982.

W. Eugene Rutledge of Rutledge & Yearout, Birmingham, for appellant.

J. M. Breckenridge of Cabaniss, Johnston, Gardner, Dumas & O'Neal and Alton B. Parker, Jr. of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellees.

Drayton N. Hamilton, Montgomery, for amicus curiae Alabama League of Municipalities.

JONES, Justice.

The issue: whether absolute immunity is a viable defense on behalf of the Mayor and members of the City Council of the City of Birmingham, in their individual capacities, in a claim based on negligence and abuse of discretion in the exercise of their respective legislative functions. We hold that it is, and affirm.

In May of 1981, the City of Birmingham, through the city council, adopted a master plan for the redevelopment and renewal of downtown Birmingham. Implementation for projects such as the master plan is provided for in Code 1975, § 24-2-1, et seq. That chapter provides, in part:

" § 24-2-1.

"(a) It is hereby found and declared:

"(1) That there exist in many communities within the state blighted areas, as defined herein, or areas in the process of becoming blighted;

"(2) That such areas impair economic values and tax revenues, cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the state, and that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection and other public services and facilities;

"(3) That the clearance, replanning and preparation for rebuilding of these areas and the prevention or the reduction of blight and its causes are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of state concern;

"(4) That redevelopment activities will stimulate residential construction which is closely correlated with general economic activity and that the undertakings authorized by this chapter will aid the production of better housing and more desirable neighborhood and community development at lower costs and will make possible a more stable and larger volume of residential construction, which will assist materially in achieving and maintaining full employment; and

"(5) That it is in the public interest that advance preparation for such projects and activities be made now.

"(b) The necessity in the public interest for this chapter is hereby declared as a matter of legislative determination."

" § 24-2-2.

"[A]ny incorporated city or town may carry out any work or undertaking, hereafter called a 'redevelopment project':

"(1) To acquire blighted areas, including slum areas, with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals or welfare of the community;

"(2) To acquire other real property for the purpose of removing, preventing or reducing blight, blighting factors or the causes of blight;

"(3) To clear any areas acquired and install, construct or reconstruct streets, utilities and site improvements essential to the preparation of sites for uses in accordance with the redevelopment plan;

"(4) To sell or lease land so acquired for uses in accordance with the redevelopment plan; or

"(5) To accomplish a combination of the foregoing to carry out a redevelopment plan."

In September of 1981, the Birmingham city council, by resolution, approved and adopted a "redevelopment plan" for Block 60 in downtown Birmingham. That resolution designated Block 60 as a blighted area and provided that all real property of Block 60 was to be acquired by purchase or condemnation, cleared, and redeveloped for office, residential, and retail use.

At about the same time, the city council passed another resolution authorizing the mayor to enter an agreement for the City with a developer for the redevelopment of Block 60. That agreement, in turn, provided that the developer would use its best efforts to acquire by purchase all of the real property in Block 60. If, however, the developer were to fail in this endeavor by a deadline of March 30, 1982, the contract went on to provide that the City, upon notice from the developer of his failure to purchase all of the land of Block 60, would acquire by purchase or condemnation all remaining property in Block 60. Further, if the City could not purchase the remaining land within 60 days of receipt of the developer's notice, the City would be required, by the contract, to proceed with condemnation prosecutions.

In October of 1981, Appellants filed for a declaratory judgment and damages, claiming that Appellees had acted arbitrarily and capriciously in determining that Block 60 was blighted and that Appellants were denied a meaningful opportunity to be heard prior to the declaration that Block 60 was blighted, thus denying them due process of law. Appellants further alleged that Block 60 is not blighted. The relief sought in the complaint was a declaration that Block 60 is not blighted; that Appellees acted arbitrarily and capriciously in determining that Block 60 is blighted; that the resolution designating Block 60 as a blighted area is void; and that the contract between the City and the developer of Block 60 is void or illegal and of no force.

Appellees filed a motion to dismiss for failure to state a claim and to eliminate certain defendants. As to the individual defendants, the trial court held:

"1 The declaration of Block 60 ... as a blighted area was a legislative act. (Housing Authority of Roosevelt City v. Nunn, 292 Ala. 60, 288 So.2d 775 (1974)). The Court finds from the various authorities cited by the defendants that the members of the City Council and the Mayor are not individually liable for acts done in their legislative capacity. It is the opinion of the Court that the holding in the case of Jackson v. The City of Florence, 194 Ala. 592, 320 So.2d 68 (1975), does not change this principle.

"...

"Based on the above, it is therefore, ORDERED, ADJUDGED, AND DECREED by the Court as follows:

"ONE: The Motion to Dismiss the members of the City Council and Mayor Richard Arrington, Jr., as individuals is granted."

Pursuant to the court's Rule 54(b), A.R.C.P., order, plaintiffs bring this appeal. We affirm.

We have been most careful in posturing the issue presented here in restricted terms. Because this appeal is before us after the entry of an order pursuant to ARCP 54(b), we may not address issues still pending in the trial court.

The issue on appeal, then, is the narrow question of whether the members of a city council and the mayor of the city, in their respective individual capacities, are entitled to absolute and unqualified immunity from personal liability in the performance of their duties in the consideration and adoption of a resolution pursuant to statutory authority for that action.

Individual liability of a public officer for injuries resulting from his tortious conduct and a municipality's immunity from suit are principles addressed by this Court as recently as February 5, 1982, in two cases released that day: DeStafney v. The University of Alabama, 413 So.2d 391 (Ala.1982); and Rich v. City of Mobile, 410 So.2d 385 (Ala.1982). See, also, Bell v. Chisom [MS. July 16, 1982], --- So.2d ---- (Ala.1982).

In DeStafney, an employee of a day care center operated by the University placed a child on a piece of playground equipment from which the child fell and suffered severe injuries. On rehearing, this Court held that "the defense of sovereign immunity afforded by Ala.Const., 1901, § 14, to the University of Alabama and its President, Dr. Mathews, does not extend to [the] employee whose alleged tortious act is the basis of the claim." DeStafney, 413 So.2d at 392. (Emphasis supplied.) The DeStafney Court went on to state that the tort liability rule for public officials and employees of Restatement (Second) of Torts, § 895D, Public Officers (1974), is consistent with Alabama's case law development in the area of "substantive immunity." That section of the Restatement provides:

"(1) Except as provided in this Section a public officer is not immune from...