Walker v. City of Birmingham

Citation342 So.2d 321
PartiesCharles WALKER v. The CITY OF BIRMINGHAM, Ala., a Municipal Corp., et al. Sarah M. WALKER v. The CITY OF BIRMINGHAM, Ala., a Municipal Corp., et al. SC 1706 and SC 1707.
Decision Date10 December 1976
CourtSupreme Court of Alabama

W. Eugene Rutledge, Rutledge & Pruett, Birmingham, for appellants.

J. M. Breckenridge, Birmingham, for appellee.

EMBRY, Justice.

Here, we decide if, when one purchases an admission ticket to a public municipal zoo, there arises an implied contract that the walkways in the zoo will be maintained in a reasonably safe condition. A contract arises under these circumstances, and therefore we reverse the summary judgments entered in behalf of the City of Birmingham.

Sarah Walker entered Jimmy Morgan Zoo in Birmingham after paying an admission fee at the gate. While walking on a paved walkway within the Zoo she allegedly stepped into a hole, fell, and sustained injuries resulting in alleged 'permanent disability' to her back.

Mrs. Walker filed suit against the City of Birmingham (as did her husband for his derivative cause of action). Three counts of her complaint were based upon negligence theories for the City's failure to properly maintain, inspect and repair the walkway. The fourth alleges the City of Birmingham breached an implied contract that the premises would be maintained in a reasonably safe condition.

The trial court granted defendant's motion for summary judgments on the basis that maintenance of a public park is a governmental function, thereby rendering the City immune from civil liability in connection with the operation of such park, by virtue of Code, Tit. 62, §§ 660 and 729. The Walkers appeal from the summary judgments. We reverse and remand.

The injury in this case occurred October 1, 1972, almost three years before the decision in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). Thus, at the time of the alleged tort, municipal immunity existed, and the tort actions are precluded by the prospective application of Jackson. Horton v. Northeast Alabama Regional Medical Center, Inc., Ala., 334 So.2d 885 (1976).

An action based on a contract, implied in fact, can be maintained against the City in this case. Count Four states a claim for breach of an implied contract to provide walkways in suitable condition for use by the plaintiff when she was at the zoo. The breach is stated to consist of allowing a defect in the walkway to exist, as a proximate consequence of which plaintiff fell and was injured. It alleges the implied contract and its breach sufficiently to state a claim for relief. Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala. 1976); Berry v. Druid City Hospital Board, Ala., 333 So.2d 796 (1976); Rule 8(a), ARCP.

There is one further matter for determination. May the City of Birmingham contract with members of the public for the use of its park?

Title 37, § 1, Alabama Code (1940), provides:

'All municipal organizations now existing in the state of Alabama * * * and all towns and cities that may hereafter be incorporated under the provisions of this title * * * shall sue and be sued, contract and be contracted with * * *'

The City of Birmingham may be sued as to those matters within its corporate powers. The express language of Tit. 37, § 1, empowers the cities of Alabama to make contracts. It is clear, then, that the City of Birmingham may be sued on its contracts, express or implied.

It is also within the scope of the City's corporate powers to establish, provide and maintain parks and park areas, and to charge reasonable fees for access, use or enjoyment of those parks. This power is expressly granted the City of Birmingham in Tit. 62, § 721, Alabama Code.

As we stated in Sims v. Etowah County Board of Education, supra, the purchase of a ticket to a place of public amusement creates a contract between purchaser and proprietor. The City of Birmingham has statutory authority to contract with members of the public regarding the maintenance of its public park walkways in a reasonably safe condition; it may be sued for breach of duties, implied in fact, arising from that contract.

REVERSED AND REMANDED.

BEATTY, J., concurs.

HEFLIN, C.J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON and SHORES, JJ., concur specially.

BLOODWORTH, Justice (concurring specially).

I concur in the judgment of the majority reversing the summary judgments granted the defendant City of Birmingham but for different reasons than those expressed by the majority.

In fact, I must respectfully disagree with my...

To continue reading

Request your trial
4 cases
  • Churchill v. Pearl River Basin Development Dist.
    • United States
    • Mississippi Supreme Court
    • February 25, 1993
    ...must be performed by the proprietor or he must respond in damages for breach of contract. Id. at 1314. See also, Walker v. City of Birmingham, 342 So.2d 321, 322 (Ala.1977). Thus, in an action brought for injuries sustained when a bleacher collapsed during a high school football game for wh......
  • United Council of Loxley, Inc. v. City of Loxley
    • United States
    • Alabama Supreme Court
    • April 25, 1986
    ...held liable if it breaches its contract. Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So.2d 792 (Ala.1978); Walker v. City of Birmingham, 342 So.2d 321 (Ala.1976); Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974); Alabama Water Co. v. Wilson, 214 Ala. 364, 107 So......
  • City of Birmingham v. Blount County
    • United States
    • Alabama Supreme Court
    • August 5, 1988
    ...294 Ala. 614, 320 So.2d 631 (1975); Wilson v. Dothan City Bd. of Education, 295 Ala. 61, 322 So.2d 708 (1975). In Walker v. City of Birmingham, 342 So.2d 321 (Ala.1976), this Court overturned a ruling that had made Birmingham immune from suit for injuries arising on sidewalks in its public ......
  • City of Birmingham v. Brasher
    • United States
    • Alabama Supreme Court
    • May 19, 1978
    ...Code of Alabama 1940 (Recomp.1958). 1 Seven years later, Justice Bloodworth, in a specially concurring opinion in Walker v. City of Birmingham, 342 So.2d 321 (Ala.Sup.Ct.1976), addressed the Jones "However, I think the tort counts are good and therefore I concur in the present judgment of r......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT