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04/07/95 CITY LANETT v. CAROLYN C. TOMLINSON AND

April 7, 1995

CITY OF LANETT
v.
CAROLYN C. TOMLINSON AND RAYMOND TOMLINSON



Appeal from Chambers Circuit Court. (CV-91-173). Howard Bryan, TRIAL JUDGE.

Released for Publication August 21, 1995.

Cook, Almon, Shores, Kennedy, and Butts, JJ., concur.

The opinion of the court was delivered by: Cook

COOK, JUSTICE.

The defendant City of Lanett appeals from a final judgment based on a jury verdict in favor of the plaintiffs Carolyn Tomlinson and her husband Raymond Tomlinson in a negligence action. We affirm.

On February 2, 1991, Carolyn Tomlinson was driving east on Fourth Street in Lanett. Brenda Sims was traveling south on First Avenue; Sims's car struck Tomlinson's in the intersection of Fourth Street and First Avenue. Tomlinson had the right-of-way; Sims did not see the city-maintained stop sign that warned First Avenue traffic to stop at the intersection, because that sign was lying face-down on the roadside. Tomlinson knew that the stop sign was down. Two days earlier, while walking in the area, she had noticed that the sign was down, but she did not notify the City of Lanett about the condition and she did not take any extra precaution when she drove through the intersection on February 2. Sims, whose driver's license requires her to wear glasses while driving, was not wearing them at the time of the accident, and she did not see Carolyn Tomlinson's vehicle until it was too late for her to avoid the accident.

Carolyn Tomlinson sued Sims and the City of Lanett, alleging that Sims had driven negligently and that the City had negligently maintained the stop sign and that the defendants' negligence had caused her injuries. Carolyn Tomlinson's husband Raymond Tomlinson also sued the City, claiming damages for loss of consortium. Carolyn Tomlinson settled her claim against Sims for $12,500. A jury returned a $237,000 verdict for the plaintiff Carolyn Tomlinson and a $50,000 verdict for her husband. The trial court entered a judgment against the City, awarding Carolyn Tomlinson $100,000 (based on a statutory limit of awards against government entities) and awarded Raymond Tomlinson $50,000. The defendant City appeals.

The City contends here: (1) that the claims against it were barred by the doctrine of contributory negligence, (2) that the trial court should have dismissed the entire action against it after the plaintiff Carolyn Tomlinson settled with the defendant motorist, (3) that the court erred in allowing the jury to hear certain evidence, and (4) that the award to the husband is not proper, in light of the $100,000 statutory cap on awards recovered from governmental entities.

The City's threshold contention is that the trial court violated Ala. Code 1975, § 11-47-191, by not dismissing this action after Carolyn Tomlinson settled with Sims. Initially, we note that §§ 11-47-190 and 11-47-191 of the Code must be read in reference to one another. Isbell v. City of Huntsville, 295 Ala. 380, 330 So. 2d 607, 609 (1976). Section 11-47-190 states:

"No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness or failure to remedy some defect in the streets, alleys, public ways or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts or the negligence, carelessness or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured."

(Emphasis added.) The relevant portion of § 11-47-191 states:

"(a) The injured party, if he institutes a civil action against the municipality for damages suffered by him, shall also join such other person or persons or corporation so liable as defendant or defendants of the civil action, and no judgment shall be entered against the city or town unless judgment is entered against such other person or corporation so liable for such injury, except where a summons is returned not found as to a defendant or when judgment is entered in his favor on some personal defense, and if a civil action be brought against the city or town alone and it is made to appear that any person or corporation ought to be joined as a defendant in the action according to the provisions in Section 11-47-190, the action shall be dismissed, unless the plaintiff amends his complaint by making such party or corporation a defendant, if a resident of the state, but no person shall be sued jointly with the city or town who would not be liable separately, irrespective of this provision."

(Emphasis added.)

This Court has long interpreted ยง 11-47-190 to limit municipal liability to two distinct classes. The municipality may be liable (1) under the doctrine of respondeat superior for injuries that result from the wrongful conduct of its agents or officers in the line of duty. The municipality may also be liable (2) for injuries that result from its failure to remedy conditions created or allowed to exist on the streets, alleys, or public ways by a person or corporation "not related in service" to the municipality. Ellison v. Town of Brookside, 481 So. 2d 890, 891 (Ala. 1985). In Ellison, the plaintiff sued two municipalities after being injured by officers attempting to arrest him on outstanding warrants. The trial court dismissed the action because Ellison had not joined the arresting officers as defendants. 481 So. 2d at 891. On appeal, this Court reversed the dismissal. We held that Ellison did not have to join the arresting officers, because the case fell under the first classification. The arresting officers were agents of the towns and were allegedly acting within the scope of ...


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