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Ex parte Tucker

Supreme Court of Alabama

December 6, 2019

Ex Parte Tim Tucker
City of Orange Beach and Tim Tucker In re: Mary Young

          Baldwin Circuit Court, CV-16-900795


          MENDHEIM, Justice.

         Tim Tucker petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to vacate its order denying his summary-judgment motion in which he contends that he is entitled to State-agent immunity for all claims asserted against him by Mary Young in an action stemming from injuries Young sustained when she tripped and fell on a residential street in the City of Orange Beach ("the City") and to enter a summary judgment in his favor. We grant the petition and issue the writ.


         Tucker is the public-works director for the City. In that capacity, he oversees the Street, Refuse, Maintenance, Custodial, Landscape, Battlefield/Golf Course, and Beach Departments for the City. Tucker reports to Ken Grimes, the city administrator. Tucker is responsible for initiating, monitoring, and supervising maintenance and repair work performed by each of the above-listed departments, including maintenance and repair work on the roads in the City. Thus, Tucker is charged with supervising the Street Department's maintenance of 34 miles of roads within the City's jurisdiction and its mowing of property abutting 17 miles of state roads.

         Tucker's duties include implementation of the City's annual resurfacing project. The list of streets to be resurfaced is generated based on relative wear and tear. The assistant public-works director, Rick White, submits recommendations to Tucker of roads and streets that should be included in the resurfacing project, and Tucker, in turn, reviews the list and provides that list to Grimes. The mayor and the city council have an opportunity to provide input and to make additions to and/or deletions from the list before a final determination is made as to which streets will be resurfaced. Tucker testified that the Street Department's goal is to repave every road and street in the City once every 10 to 12 years.

         Tucker testified by affidavit that, aside from resurfacing, work on the shoulder of the roads is performed on an "as noted and needed" basis. It is undisputed that the City has no written policies or procedures with regard to how often or in what manner repairs are to be made to the shoulders of roads within the City. Repairs are performed when a problem is brought to the City's attention by an employee or by a complaint from a member of the public. In his capacity as public-works director, Tucker prioritizes repairs and maintenance based on such factors as the severity of the condition or defect, the availability of labor and materials, and budgetary constraints. There is no written policy concerning the prioritization of repairs; instead, Tucker uses his judgment to make the decisions as to whether and when repair work is performed.

         In 2012, Young was living in the Bear Point Community on Dowdy Lane, two streets over from Louisiana Avenue. Young testified that she had lived in the community for several years, that she had lived on Dowdy Lane for approximately 7 years, and that before that she had lived on Louisiana Avenue. The Bear Point Community is a single-family residential neighborhood with no sidewalks in which homes are close to the streets and front yards extend all the way to the street, including on Louisiana Avenue. Young submitted Google Earth mapping-service photographs from April 2011 indicating that at that time the surface of Louisiana Avenue was flush with the shoulder of the street and accompanying lawns.

         In October 2012, Mobile Asphalt Company, LLC ("Mobile Asphalt"), contracted with the City to perform its annual resurfacing project, which had been voted on and approved by the city council ("the 2012 repavement project"). The project included resurfacing Louisiana Avenue in the Bear Point Community. Mobile Asphalt's contract with the City specified that it was to pave a 1.5-inch overlay on the streets to be resurfaced. It is undisputed that, at that time, "dressing" of the edge of roadways was the City's responsibility, not the contractor's. Kenny White, the City's street superintendent, served as the foreman on the shoulder work after Mobile Asphalt had repaved Louisiana Avenue.[1] Rick White testified that the shoulder work involved "putting dirt down [and] raking it to elevation," followed by seeding the ground with grass to help hold the dirt in place. White testified that the goal is to "keep dirt ... about an inch, inch and a half below surface [of the road] for when the grass grows and easy shed for water." White stated that this standard was just something "we've always done" and that it was not contained in a written City policy.[2] Tucker confirmed in his affidavit that this is the usual guideline used and that "there is no written standard dictating the amount of fill that is required to be placed." Rick White testified that he visited the worksite daily to ensure that the work was being performed correctly. Kenny White kept a daily log of the work his crew performed. Tucker testified that those records indicated that dirt was added alongside the asphalt on Louisiana Avenue on December 10, 17, 18, 20, 21, 26, and 27, 2012. At the conclusion of the resurfacing project, Rick White inspected the work that had been performed by Mobile Asphalt and the City. White told Tucker that the work had been performed satisfactorily. Tucker then approved Mobile Asphalt's invoice for payment on the project. Tucker testified that to his knowledge the City never received any complaints about the shoulder along Louisiana Avenue from the time the street was resurfaced until the date of Young's accident.

         On January 16, 2015, at approximately 9:30 p.m., Young was walking her dog along Louisiana Avenue. Young testified that it was dark and that there were no street lights. Young attempted to get her dog back on the street after it had veered off the asphalt, and she then tried to step onto the street as well from the shoulder. Young's foot caught on the edge of the asphalt of the street, and she tripped and fell to the ground. Young testified that she broke her shoulder as a result of the fall and that she had to have immediate surgery. Young estimated that where she tripped and fell there was a six-inch differential between the shoulder of the road and the asphalt roadway. Her son later measured Louisiana Avenue drop-off ranges from the roadway to the shoulder from between three inches to nine inches.

         On July 22, 2016, Young filed a complaint in the Baldwin Circuit Court asserting claims of negligence and wantonness against the City, Tucker in his individual capacity, and Mobile Asphalt. Young alleged that the defendants had "breached their duty by not inspecting and correcting the significant shoulder drop offs at various locations within the City of Orange Beach, including Louisiana Avenue, at any point during or after the repaving process ...." The City and Tucker filed a joint answer to the complaint on September 2, 2016.

         On May 6, 2019, the City and Tucker filed a summary-judgment motion, an accompanying brief, and supporting evidentiary materials with respect to the claims Young asserted against Tucker. In their brief, the City and Tucker contended that Tucker is entitled to State-agent immunity from the claims Young asserted against him. Specifically, they conceded that Tucker's responsibilities as public-works director for the City included "initiating, monitoring and supervising maintenance and repair work" for the City's streets, but they argued that "when and where that work is performed is wholly discretionary." They contended that this discretion entitles Tucker to State-agent immunity from Young's claims.

         On May 17, 2019, Young filed a response in opposition to the City and Tucker's summary-judgment motion. In her response, Young argued that Tucker had violated specific standards applicable to the Louisiana Avenue repavement project and that, therefore, he was not entitled to State-agent immunity. Specifically, Young contended that the Alabama Department of Transportation's Standard Specifications for Highway Construction ("the ALDOT Specifications") provided "clear and detailed regulations for shoulder/roadside repair work" that Tucker had violated during the repavement of Louisiana Avenue. She also argued that the City of Orange Beach Construction Standards for Miscellaneous Construction, Utility Excavation, and Right-of-Way and Pavement Restoration ("the City Construction Standards") "required that all lawn areas affected by a construction project be replaced with materials that were existing prior to the project" and that Tucker had violated this standard as well.

         On May 21, 2019, the circuit court held a hearing on the City and Tucker's summary-judgment motion. On the same date, the circuit court entered an order denying their summary-judgment motion.

         Tucker timely petitioned this Court for a writ of mandamus. We ordered answers and briefs and granted a motion filed by the City to stay the proceedings below.

         Standard of Review

"'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 ...

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