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Ex parte City of Tuskegee

Supreme Court of Alabama

September 27, 2019

City of Tuskegee. In re: Nyasha Redd, administrator of Estate of Yvonne Redd, deceased

Page 626

         (Macon Circuit Court, CV-14-900007).

         Rick A. Howard and April W. McKay of Holtsford, Gilliland, Higgins, Hitson & Howard, P.C., Montgomery, for petitioner.

          Ted L. Mann of Mann & Potter, P.C., Birmingham, for respondent.

         WISE, Justice.

         The City of Tuskegee ("the City"), the defendant below, petitions this Court for a

Page 627

writ of mandamus directing the trial court to vacate its order denying the City's motion for a summary judgment as to negligent inspection and negligent failure to provide hydrant and/or water pressure claims asserted against it and to enter a summary judgment for the City as to those claims on the grounds of both substantive immunity and municipal immunity under § 11-47-190, Ala. Code 1975. We grant the petition and issue the writ.

         Facts and Procedural History

         This case arises from the death of Yvonne Redd ("Yvonne") in a house fire that occurred at a residence located at 804 South Main Street in Tuskegee ("the house") on December 27, 2012. Fred Bascomb, Jr., owned the house, and Yvonne and her sister, Patricia Carlisle, had previously rented the house and had lived there for one or two years. In 2012, they rented the house again, and moved in on or about December 12, 2012.

         Yvonne's daughter, Nyasha Redd ("Nyasha"), testified that her mother's health had started deteriorating in 2010 as a result of a series of strokes; that Carlisle and Yvonne had lived together for years; and that, as Yvonne's health deteriorated, Carlisle took care of Yvonne. Nyasha testified that Yvonne could walk aided by a walker and that Yvonne would periodically use a wheelchair to go out.

         The evidence presented in this case indicated that the City's building code required rental properties to have hardwired smoke detectors. Willie Smith, the fire marshal for Tuskegee Fire Department ("TFD"), testified that the City building code required the building inspector or the fire marshal for the City to conduct an inspection of a rental property before the utilities could be turned on for that property; that the person conducting the inspection would ensure that smoke detectors were present and functioning; and that a form would be completed after the inspection. Evidence was presented that utilities would not be turned on at a residence if the residence did not have the required functioning smoke detectors.

         Nyasha testified that she helped her mother move and that she had the utilities turned on at the rental house. She also testified that she talked with Bascomb as she was waiting to get the utilities turned on. Nyasha further testified that she was at the City utility board's office arranging to have the utilities turned on; that she was to meet Charlie Bowen, a building official for the City, at the house for the inspection; that she was talking to Bascomb on her cellular telephone; that a Ms. Cardwell, an employee of the utility board, was on the telephone with Bowen; that Nyasha was told that she did not have to meet Bowen at the house; that Bascomb told Nyasha that Bowen had gone out to the house; that Bowen had also told Cardwell that everything was "fine and ready to move in"; and that Nyasha was told that the power had been turned on.

         The City submitted an inspection form for the house that was signed by Bowen and dated December 14, 2012. The form is titled "Safety Inspection Form" and includes an area to mark whether the property being inspected is a single-family dwelling, a multifamily dwelling, or commercial property. In the first comment section on the form, Bowen included the following note:

"There were no visible hazards found in the House listed above. Utility services can now be issued to Yvonne Redd."

         There was a checklist on the form that included the following:


"________ Lawn

"________ Doorbell

"________ Doors

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"________ Windows/Screens

"________ Roof


"________ Switches/Plugs

"________ Smoke Detector

"________ Light Fixtures

"________ Vents

"________ Ceiling Fans

"________ Thermostat


"________ Bathroom Exhaust

"________ Shower

"________ Commode

"________ Sink/faucets


"________ Sink/Faucets

"________ Stove Fan"

         Bowen did not mark any of the items on the form. However, the comments section at the end of the form included the following note:

"For tenant safety, Smoke Detectors must be installed by the owner(s)."

         The City submitted a document on the letterhead of the City's Department of Building, Engineering, and Planning. The document was dated November 2, 2017, after the commencement of the underlying action, and stated:



(Capitalization in original.) The document appears to include an electronic signature of Bowen. The City also submitted a 2018 affidavit from Bowen in which he stated:

"I am the building official for the City of Tuskegee, Alabama, and have been so employed at all times relevant to this suit. In December of 2012, Fred Bascomb completed a rental/lease verification form for the utilities to be turned on at his rental house at 804 South Main Street, Tuskegee, Alabama 36083. When he filled out the verification form, I inspected the premises at 804 South Main Street.... At that time, no deficiencies were observed and I personally saw smoke detectors installed in this house. I have attached to my affidavit the form filled out by Bascomb and the inspection sheet allowing utilities to be turned on at the house. The inspection form states: `For tenant safety, smoke detector must be installed by the owner(s).' This statement was included to settle any dispute between the owner and the tenant as to which party was responsible for paying for the smoke detectors that were installed."

         The City also attached an affidavit from Michael McNeil, in which he stated:

"I installed the smoke detectors at Fred Bascomb's rental house at 804 South Main Street, Tuskegee, Alabama 36083. After I installed the smoke detectors, Charlie Bowen inspected the smoke detectors."

         Bascomb also testified that there were nine smoke detectors in the house; that the smoke detectors were mounted on the ceiling; that the smoke detectors were hardwired and had battery backups; that McNeil was an electrician who performed electrical work for him; and that McNeil installed the smoke detectors.

         Nyasha testified that she visited her mother and Carlisle every day while they were living most currently at the house on South Main Street; that she did not see smoke detectors at the house during her visits; that Yvonne and Carlisle were having electrical problems; that some electrical outlets did not work; that the roof

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leaked; and that rainwater would come through light fixtures. Nyasha testified that Carlisle had told her that, on the morning of December 27, 2012, she had telephoned Bascomb to complain about the rain coming through the light fixtures; that Bascomb had said he would send his maintenance assistant to see about it; that Carlisle had to go to work that day; that Yvonne had been instructed not to open the door for anyone; and that Bascomb had told Carlisle he would contact her when his maintenance assistant was on his way to the house. Nyasha testified that Joe Ross, a family friend, went to Yvonne's residence that day to feed her lunch; that, although Yvonne could actually feed herself, she could not cook or do anything in the kitchen because she depended on a walker; that Ross warmed up some food in the microwave and gave it to Yvonne; that Ross said that Yvonne had eaten and that everything was fine when he left the house; and that Ross had been gone for about 30 minutes when the fire started.

         At approximately 4:15 p.m. on December 27, 2012, the Tuskegee Police Department and TFD were dispatched to the house on a report of a fire. Evidence was presented indicating that an officer with the Tuskegee Police Department and a deputy with the Macon County Sheriff's Department were the first to arrive on the scene. The officers noticed a large amount of smoke coming from the residence and were told that an elderly, bedridden female was inside. Although law-enforcement officers were able to force open the front door, they were not able to make entry because of the amount of smoke. At that time, the first fire engine arrived, and the scene was turned over to TFD.

         TFD arrived on the scene at 4:20 p.m., and the City presented evidence indicating that the fire was fully involved at that time. Ultimately, two pumper trucks — Engine 1 and Engine 2 — a ladder truck, and 12 fire personnel from TFD responded to the scene. Engine 2 was the first truck to arrive on the scene; Engine 1 arrived right behind it. Sgt. Uralvin Clark and two firefighters, Robert Bryant and Colby Hicks, were on Engine 2. The City presented evidence indicating that Engine 2 had a 1,250-gallon-a-minute pump and a 1,000 gallon tank. Lt. Wayne Brooks, who was acting as a captain at that time, and Sgt. Jason Levett were on Engine 1. The City presented evidence indicating that Engine 1 had a 1,000-gallon-a-minute pump and a 750 gallon tank. Evidence was presented indicating that Engine 2 connected to hydrant 301 located at the corner of South Main and Laslie Street, which was near Tuskegee Intermediate School; that that hydrant was operational at the time; and that that hydrant was a little over 1,300 feet from the house.

         Lt. Brooks testified that, when he arrived on the scene, he did a 360-degree inspection of the scene; that the fire had already ventilated before they arrived; and that smoke and flames were "coming all out the roof and everywhere." Lt. Brooks explained:

"So what I mean ventilated, it had vented through the roof when I said ventilate, so it done — you know, it done burned on the inside, just vented out through the roof when we got there. And the whole entire house was just — you know, I meant to say it was up in the ceiling part of it at first, all over in the ceiling part before it got, you know, on out into the rest of the house."

         Lt. Brooks testified that he told Hicks and Bryant to pull both one-and-three-quarter-inch attack lines[1] from Engine 2 and to go

Page 630

to the north side of the house where the fire was burning. Lt. Brooks testified that the attack lines were 100 feet long; that they had fog nozzles with 100 pounds per square inch of pressure; that the gauges of the lines were set at "one hundred by one fifteen or one hundred of pressure that we put through that inch-and-three-quarter line"; and that, when the fire nozzle is turned on and directed at a fire or structure, 125 gallons per minute of water are coming out of that line. He also testified that he told Sgt. Clark to connect to "the hydrant off their right, right in front of South Main Street"; that they used the hydrant near Tuskegee Intermediate School; and that Sgt. Clark used a three-inch hose, which is called a supply line, to connect to the hydrant. Lt. Brooks agreed that there was another hydrant across the street from the school in the front yard of a law office. When asked whether that other hydrant was operational on the day of the fire, he testified that he was not sure. When asked if he knew whether that other hydrant had been used or attempted to be used, he stated that he did not know; that he did not go with Sgt. Clark to connect the hose to the hydrant; and that he remained at the house. When asked if he knew why the other hydrant was not used, he responded that Sgt. Clark "had seen that one, I guess, and just went to it." Lt. Brooks testified that the hydrant they used was capable of producing 500 gallons of water per minute. Lt. Brooks testified that there was over 1,300 feet of hose between the hydrant and the engine; that the length of the hose would decrease the effectiveness of the water supplied through the line, which is called "friction loss in the line"; and that, with that length of downline hose, there would be a pretty substantial reduction of the gallons available per minute. However, he testified that, during the time the hose was connected to the hydrant and pulled down to the house, Engine 2 never ran out of water.

         Lt. Brooks's preliminary report regarding the fire included a section labeled "Fire Suppression Factors." The first fire-suppression factor listed was "Locked or jammed doors." The second fire-suppression factor listed was "Hydrants Inoperative." However, the report does not include any additional information about those factors. Additionally, Lt. Brooks testified that TFD did not at any time try to connect to a hydrant that was inoperable.

         Lt. Brooks testified that Engine 2 had 1,000 gallons of water when they arrived at the house and that they used that to put water on the north side of the house. Lt. Brooks also testified that, as he and Sgt. Levett were going inside the house, he heard somebody on the side of the house screaming and saying her mother or somebody was still in the house; that the woman said, "She's in this room," which was the front room; that, after Sgt. Clark returned to the truck, Lt. Brooks and Hicks went inside first with a hand line, which is a hose that could be used to put out any fire in a particular room, to perform a search and rescue. Lt. Brooks testified that he and Hicks went through the front door; that heavy smoke was billowing but that there was not any fire in the front room at the time; that he and Hicks did a search but they could not find anyone; and that they came back out. Lt. Brooks testified that the woman was still screaming, "I know she in there. She in there. That where I left her at." Lt. Brooks testified that they made another attempt to locate the victim, stating:

"Went back in the same way. And then, I mean, I can hear her saying, `She might be in the restroom,' so we went —

Page 631

how her room were was it was [sic] — you know how the bedroom and the restroom connected —


"[Lt. Brooks:] — and stuff, so we went down in the — went back, search again, right-hand search like we normally do, clear the floor with our legs and stuff so we can feel and the bed, feeling. Went out of there, went down in the restroom, and she wasn't in there. Felt around in there and the tub and everything. Then we made an attempt back out, and when we was coming back out, I noticed another room to my left-hand side. I kind of checked that. It was kind of locked. I checked the door, it was locked, before we backed back out. So what I did, I pushed it in, went in there, and it just had a lot of stuff behind it. Pushed it in, went in that room, and searched it, too, also, before we came back out, and she wasn't in there. And then after that, I told him we're just going to back on back out and just, you know — and then about that — okay."

         Lt. Brooks testified that, at that time, Bryant told him that other firefighters had had to force in a side door that had a ramp going up to the north side of the house; that he did not know if the door had some type of bars on it; and that the other firefighters went inside with a hand line and started shooting water.

         Lt. Brooks testified that, by that time, and despite their best efforts, the fire was getting more intense and moving toward the front of the house. Lt. Brooks testified that he had to request mutual aid from other fire departments; that he called dispatch for more help; and that he told dispatch that he needed the VA Fire Department[2] to respond. He also testified that a power line attached to the north side of the house had come down and that he had to get the utility board to come out and deal with the electrical line. Ultimately, the VA Fire Department, the Shorter Volunteer Fire Department, the ...

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