Ex parte David Labbe, mayor of the City of Valley Grande, and City of Valley Grande; (In re: Marcus Kelley et al.
W. Alan Dailey, County Coroner of Dallas County, et al.)
Released for Publication January 20, 2015.
(Dallas Circuit Court, CV-13-900002). Marvin Wayne Wiggins, Trial Judge.
For Petitioners: Rick A. Howard and April W. McKay of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery.
For Jeffery Barlow, Respondent: Fernando A. Morgan of The Morgan Law Firm, Montgomery.
For Marcus Kelley and Yolanda Kelley, Respondents: Cleophus Gaines, Jr., of The Gaines Law Firm, LLC, Montgomery.
BOLIN, Justice. Stuart, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. Murdock, J., concurs specially. Moore, C.J., dissents.
PETITION FOR WRIT OF MANDAMUS
The City of Valley Grande (" the City" ) and its mayor, David Labbe, who was sued in his official capacity (hereinafter collectively referred to as " the petitioners" ), petition this Court for a writ of mandamus directing the Dallas Circuit Court to vacate its order denying the petitioners' motion for a summary judgment and to enter a summary judgment for the petitioners on the claims asserted against them by Marcus Kelley, Yolanda Kelley, and Jeffery Barlow, Jr. (hereinafter collectively referred to as " the plaintiffs" ). We grant the petition and issue the writ.
Facts and Procedural History
The Valley Grande Volunteer Fire Department (" the fire department" ) was incorporated on August 22, 1983, specifically for " charitable purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1954." The petitioners state that the City was incorporated sometime after the fire department was created. On August 4, 2008, the City entered into an agreement with the fire department pursuant to which the fire department agreed to provide fire-protection service to the City " without remuneration." However, the petitioners did acknowledge in the fire-service agreement that the City " ha[d] in the past and likely [would] continue to provide [the fire department] with some level of annual funding." The evidence presented in support of the petitioners' summary-judgment motion indicates that the City made annual donations of $15,000 to the fire department in the years 2010-2012. Mayor Labbe testified in his affidavit that the City does not maintain a fire department and that it does not employ, train, or supervise firefighters. Mayor Labbe testified that the City and the fire department are separate entities and that the City does not maintain or reserve any right of control over the fire department.
On January 25, 2011, James Barlow, Sr., and his mother, Bertha Yeager, were killed in a house fire. W. Alan Dailey, the coroner for Dallas County, pronounced Barlow and Yeager dead at the scene and directed members of the fire department to remove the remains of the deceased from the house. The plaintiffs allege that the fire department represented that it had recovered all the decedents' remains.  The plaintiffs state that in April 2011 the family discovered a body bag at the scene of the fire that contained additional remains of Barlow.
On January 4, 2013, the plaintiffs sued the petitioners, among others, asserting claims of negligence; wantonness; intentional infliction of emotional distress; fraud; suppression; and negligent and/or wanton hiring, training, and supervision of the individual firefighters against both the City and the mayor. On February 12, 2013, the petitioners answered the complaint, asserting certain affirmative defenses, including immunity.
On February 25, 2013, the petitioners moved the trial court for a summary judgment, arguing, among other things, that the petitioners did not employ, supervise, or train any firefighters; that petitioners did not reserve any right of control over the fire department; that the petitioners were entitled to immunity pursuant to the Volunteer Service Act, § 6-5-336, Ala. Code 1975; that the City was immune from suit for intentional torts of its agents, officers, or employees pursuant to § 11-47-190, Ala. Code 1975; and that the petitioners
could not be liable for negligent and/or wanton hiring, training, or supervision of the individual firefighters because, they said, no master-servant relationship existed between the City and the fire department.
On June 11, 2013, the plaintiffs filed their response in opposition to the motion for a summary judgment, arguing that the fire department is de facto the fire department for the City pursuant to a contract entered into between the City and the fire department in which the fire department agreed to provide fire-protection service to the City in exchange for annual funding provided by the City. The plaintiffs further argued that a master-servant relationship existed between the City and the fire department such that the City could be held liable for the actions of the fire department.
On August 28, 2013, the trial court entered an order denying the petitioners' summary-judgment motion. This petition followed. Because of the procedural posture of this case, we address only those issues grounded on a claim of immunity; we do not address, and the petitioners did not argue, the claim ...