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Ex parte Venter

Supreme Court of Alabama

September 22, 2017

Ex Parte Terrence Venter and the City of Selma
v.
Terrence Venter and the City of Selma In re: Mary Vick, as administrator of the Estate of Aubrey Vick, deceased

         Dallas Circuit Court, CV-10-160

          PETITION FOR WRIT OF MANDAMUS

          SELLERS, Justice.

         Terrence Venter and the City of Selma ("the City") petition this Court for a writ of mandamus directing the Dallas Circuit Court to vacate its February 20, 2017, order denying their motion for a summary judgment based on Venter's State-agent immunity and to enter an order based on that defense. We deny the petition.

         Facts and Procedural History

         On September 19, 2008, Aubrey Vick was killed when the vehicle he was driving collided with a fire truck being driven by Venter; the collision occurred at the intersection of Old Orrville Road and Vaughan Memorial Drive in Selma. Mary Vick, as administrator of Aubrey's estate ("the estate"), filed a wrongful-death complaint against Venter and the City. In count one of the complaint, the estate alleged that Venter, "while acting in the line and scope of his employment with the City of Selma's fire department, and operating a vehicle owned by the City of Selma, negligently drove the vehicle into the vehicle owned by plaintiff's decedent." The estate claimed that the City was vicariously liable for Venter's alleged negligence. Count two of the complaint alleged that the City had negligently installed, maintained, and/or designed the traffic light at the intersection where the accident occurred.

         On October 10 2010, Venter and the City filed a motion for a summary judgment pursuant to Rule 56, Ala. R. Civ. P., raising as to count one the defense of discretionary-function immunity, now referred to as State-agent immunity, see Ex parte Cranman, 792 So.2d 392 (Ala. 2000), and as to count two the defense of substantive immunity. In support of the motion for a summary judgment as to count one, Venter and the City relied on Venter's affidavit, which states, in relevant part:

"On September 19, 2008, right around lunch time, I was traveling down Old Orrville Road with Captain Coley Byrd and fellow fireman Kenny Brown. We were traveling in fire truck #104 and were returning to Selma Fire Station #4 after riding around assigned territory within the City of Selma. We had been patrolling areas around the City of Selma, learning streets and areas, inspecting streets and layout of the City of Selma and to simply cover our territory in case someone is in need of assistance. These patrols are an essential part of our duties as firemen. In addition, the patrols often serve as a sort of training exercise so we can learn about our fire territory and our duties as City of Selma firemen. Similar to a police officer, if we are not directly responding to a call or at the scene of a fire, we are often simply patrolling, looking for people in need of help or waiting for an emergency call. During these patrols, if someone needs help from us, we will pull over and assist in any possible way.
"On the day of the accident, as I approached the intersection of Old Orrville Road and Vaughan Memorial Drive, the traffic light was green, giving me the right of way. The light was green as I approached the intersection and remained green as I prepared to pass through the intersection. The fire truck was traveling approximately 30 miles per hour as I approached the intersection. Just prior to entering the intersection, I noticed a silver Nissan truck approaching the intersection at a speed indicating the truck was going to enter the intersection. It was later determined that the truck was driven by Aubrey Vick. I noticed the truck immediately before entering the intersection and took my foot off the accelerator to prepare to brake. The truck then began slowing down and looked like it was going to stop at the stop light. But the other truck did not stop and entered the intersection, proceeding through the red light. The vehicles arrived at the intersection simultaneously, with my vehicle proceeding through the intersection on a green light. For no apparent reason, the other truck, Vick, was looking to his right. Vick drove his truck directly into the path of the City of Selma fire truck."

         Venter and the City also attached to the summary-judgment motion the affidavits of Captain Richard Coley Byrd and Kenny Brown, both of whom were passengers in the fire truck at the time of the accident and both of whom provided similar accounts of the events leading up to the accident. The estate responded by filing a motion requesting a continuance of the hearing on the summary-judgment motion until after the City had responded to the estate's discovery request concerning the traffic light at the intersection.[1] On February 20, 2017, following a hearing, the trial court entered an order, denying the motion for a summary judgment. Venter and the City filed this petition for a writ of mandamus asking this Court to direct the trial court to enter a summary judgment for Venter and the City on the basis of both State-agent immunity and substantive immunity. This Court ordered answers and briefs as to only the issue whether Venter is entitled to State-agent immunity.

         Standard of Review

"A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: '"(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court."' Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001))."

Ex part Alabama Dep't of Corr., [Ms. 1160413, August 25, 2017] ___ So.3d ___, ___ (Ala. 2017).

"'While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala. 1996)....
"'Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law."
Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala. 1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala. 1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala. 1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala. 1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala. 1998).
"'An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala. 1991), Boland v. Fort Rucker Nat'l Bank, 599 So.2d 595 (Ala. 1992), Rowe v. Isbell, 599 So.2d 35 (Ala. 1992).'"

Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 ...


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