Rel: March 28, 2025
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA OCTOBER TERM, 2024-2025 _________________________
SC-2024-0524 _________________________
Ex parte City of Muscle Shoals
PETITION FOR WRIT OF MANDAMUS
(In re: Reginna Burrell et al.
v.
City of Muscle Shoals)
(Colbert Circuit Court: CV-20-900062)
BRYAN, Justice.
The City of Muscle Shoals ("the City") seeks a writ of mandamus
directing the Colbert Circuit Court ("the trial court") to enter a summary SC-2024-0524
judgment in its favor on claims asserted against it by several residents of
the City. The plaintiffs seek damages on claims of negligence and
trespass arising from the City's management of a stormwater-drainage
pond in their neighborhood. We grant the petition and issue the writ.
Background
The plaintiffs in this case include Jennifer Cross and Jason Cross;
Dana Fisher; Brady Gregory and Amber Gregory; Brett King and
Amanda King; Tammy Michael and Charles Michael; Dustin Parker;
Carolyn Pate; Jamie Reed; Mary Rowe and Jimmie Rowe; and Miller
Terry and Sonya Terry.1 We will refer to those individuals collectively as
"the plaintiffs." All the plaintiffs live in a neighborhood in which the City
owns and manages a pond as part of its stormwater-drainage system.
Heavy rainfall occurred in February 2019, which overwhelmed the pond
and flooded the plaintiffs' houses.
1Not all the original plaintiffs below joined the answer and brief
filed in response to the City's mandamus petition. The appendices to the City's petition do not show why those parties have not participated in this mandamus proceeding. The plaintiffs listed here are those who have joined the answer and brief filed in response to the City's petition. All of them were named in the original complaint. 2 SC-2024-0524
Procedural History
The plaintiffs filed their complaint against the City on March 6,
2020. They sought damages based on claims of negligence, wantonness,
and trespass. The City answered the complaint and asserted that the
plaintiffs' claims were barred by § 11-47-190, Ala. Code 1975.
The plaintiffs amended their complaint in November 2021. In that
filing, the plaintiffs abandoned their wantonness claim and added a
request for injunctive relief. Specifically, they asked the trial court to
order the City to enact a stormwater-management plan and to comply
with the City's drainage manual for the benefit of other City residents
and to prevent future flooding to their properties. The City moved to
dismiss the plaintiffs' claim for injunctive relief on the ground that it was
barred by substantive immunity. The trial court denied the City's
motion.
The City petitioned this Court for a writ of mandamus in April
2022. In March 2023, this Court granted the petition on the ground that
substantive immunity barred the plaintiffs from obtaining a judgment
directing the City to enact and enforce particular policies. See Ex parte
City of Muscle Shoals, 384 So. 3d 37 (Ala. 2023). This Court thus issued
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a writ directing the trial court to dismiss the plaintiffs' demand for
injunctive relief. Id. at 45. The trial court did so in April 2023.
Thereafter, the City answered the amended complaint, once again
asserting that the plaintiffs' claims were barred by § 11-47-190. The City
also added a defense that the plaintiffs' claims were barred by
substantive immunity. In July 2024, the City moved for a summary
judgment on the plaintiffs' claims for damages. The City argued that the
claims were barred by § 11-47-190 and that there was not substantial
evidence to support the trespass claim. The plaintiffs responded, and, in
its reply brief, the City added an argument that substantive immunity
barred the plaintiffs from recovering on the ground that the City had
failed to comply with its drainage manual.
The trial court denied the City's motion on August 13, 2024. It did
not state its reasons for the ruling. The City then filed its mandamus
petition with this Court. We ordered an answer and briefs.
Summary-Judgment Evidence
The evidence presented to the trial court showed the following. The
City is in a region with complicated hydrology and topography, which
makes it susceptible to flooding. In 2019, the plaintiffs all owned houses
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in a neighborhood in the City known as Nathan Estates. A drainage pond
in the neighborhood exists at a natural low point. The pond receives
water from an area of approximately 0.6 square miles, or more than 300
acres.
In 2019, the Nathan Estates pond had no pump. There is no
natural tributary or other body of water within the City limits to which
water from the Nathan Estates pond can be diverted. Most ponds in the
City's stormwater-drainage system that have pumps divert water into
the Tennessee Valley Authority reservation or into creeks that drain into
the Tennessee River. The Nathan Estates pond has no access to either
of those bodies of water.
There is conflicting evidence about whether the Nathan Estates
pond was designed as a detention pond or as a retention pond. The City
engineer explained that a detention pond is designed to hold water
temporarily and to slowly release it into pipes or streams, allowing it to
drain in a controlled manner to prevent flooding downstream. Detention
ponds typically empty within 24 to 48 hours. A retention pond, however,
provides storage for stormwater without a positive outlet. A positive
outlet exists when water has access to a pipe or stream without having
5 SC-2024-0524
to travel uphill. The only outlet for water in a retention pond is
evaporation into the air or infiltration into the surrounding soil.
Retention ponds typically have permanent or semi-permanent pools.
The City engineer stated that, because no stream or pipes tie into
the Nathan Estates pond, it is a retention pond and not a detention pond.
The mayor and the civil engineer who consulted with the City agreed that
the Nathan Estates pond is a retention pond because it has no outlet
through which water can flow out of the pond.
However, the plaintiffs' expert witness stated that the Nathan
Estates pond is a detention pond because it was meant to dry up and was
not designed to hold water permanently for fishing or similar purposes.
He did not distinguish detention ponds from retention ponds on the basis
of whether an outlet existed, but solely on whether the pond was intended
to permanently hold water. In his opinion, all ponds in a drainage system
should have an outlet structure.
Before 2005, the Nathan Estates pond had been privately owned
and maintained by the neighborhood's developer. The developer first
asked the City to assume ownership and maintenance of the pond in
2001. In 2003 or 2004, the pond flooded into surrounding roads. Because
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water dissipated very slowly from the pond, that flooding prevented
residents from using the roads for days. The City engineer testified that,
in 2005, the City thus purchased and designed improvements to the pond
to prevent such road blockages from happening regularly in 10- or 25-
year rainfall events.
The industry standard for drainage design and stormwater
mitigation is to use 24-hour rainfall probabilities. In hydrology, the
phrasing of a "100-year rainfall event" means that, statistically, there is
a 1% probability of having a 24-hour rainfall event of that magnitude in
any year. It does not mean that rainfall of that magnitude happens only
once every 100 years. The Federal Emergency Management Agency
("FEMA") sets the industry standard for flood-risk definitions. Working
with civil engineers and using historical data, FEMA creates maps to
determine whether and at what probability a particular area is likely to
experience flooding. FEMA uses the 1%, or 100-year rainfall event,
probability to determine whether a particular house is required to have
flood insurance. For areas outside that level of risk, flood insurance may
be recommended because of repeat flooding, but it is not required. In
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2019, the plaintiffs' houses were not in a FEMA-designated area
requiring them to buy flood insurance.
The City uses information from FEMA's mapping as part of its
design and planning for stormwater management. The plaintiffs' expert
testified that municipal requirements for residential flood control vary
greatly by region. Typically, most municipalities require control of 2- to
25-year events, which are statistically more likely to occur. He testified
that, at all times relevant to this case, the City required mitigation
measures capable of dealing with 25-year rainfall events for residential
neighborhoods. Most ponds within the City's drainage system are
designed to contain 25- to 50-year rainfall events and would not contain
100-year rainfall events.
The improvements the City designed for the Nathan Estates pond
in 2005 were intended to prevent future flooding of the roads in a 25-year
rainfall event. The improvements were not designed specifically to
protect the plaintiffs' houses from larger, 100-year rainfall events. The
City did not perform studies or attempt to determine whether the 2005
improvements would be enough to protect the houses in the
neighborhood.
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In early 2005, the City had a geotechnical report prepared in
anticipation of the City's takeover of the Nathan Estates pond. That
report found that the area around the pond has clay soils, which do not
drain quickly. Thus, the area had poor potential for natural percolation
in the soils beneath the pond. It acted more like a retention pond than a
detention pond. Moreover, the underlying groundwater elevation was
near the bottom of the pond. Thus, increasing the depth of the pond
would have only a limited benefit.
The mayor testified that the City spent approximately $500,000 to
expand the pond to double its capacity and to add a spillway on the
western side. The City engineer testified that the 2005 improvements
that the City designed and implemented were intended to increase the
storage capacity of the pond as much as possible within the acreage
available. The spillway added did not allow water to leave the 300-acre
area that drained into the pond. It did allow water to spill from the pond
into a broader area. The intent was to give stormwater as much area as
possible laterally to keep it from getting deeper.
The improvements were completed in January or February of 2006.
The civil engineer who consulted with the City believed that the pond
9 SC-2024-0524
worked as designed. The improvements were sufficient to handle many
rainfall events between 2005 and 2019 and prevented flooding from
rendering the surrounding roads impassable.
The plaintiffs' expert witness agreed that the improvements had
been constructed in accordance with the City's plans. However, he
believed that the spillway was ineffective because water would
ultimately return to the pond. After the improvements were made,
unless the City brought a portable pump to the pond, water still could
leave only by evaporation or infiltration. Thus, there was still no outlet
for water to flow out of the pond's broader drainage area. The plaintiffs'
expert witness did not have an opinion about how that could be
accomplished at the Nathan Estates pond, but he stated that the City
"could do something and there was no plan."
The City performed regular maintenance on the pond after its
improvements were completed. This included treating the water,
providing mosquito control, mowing the surrounding grass and brush,
and other services. The City did not make further improvements to the
pond between 2006 and 2019. The City had no plan in place before the
2019 flood for how to divert water away from the Nathan Estates pond
10 SC-2024-0524
other than through infiltration, evaporation, or the spillway. The
plaintiffs' expert witness did not offer an opinion on whether the City had
appropriately monitored the Nathan Estates pond. He did not know
what the City's maintenance plan for the pond was or whether the pond
was appropriately maintained.
The parties dispute whether the City had notice of any defective
condition of the pond after it completed its improvements. The plaintiffs
presented the following evidence to show notice and the existence of a
defect. Between 2006 and 2019, the pond never emptied. August 2006
and September 2006 City council records show discussions about the
volume of water in the Nathan Estates pond. The City clerk recalled that
the City council discussed residents' concerns that the pond seldom dried
up. He remembered that the idea of adding a pump had been considered
but was determined not to be a viable solution because there was no
feasible option for where to divert the water. The pond is approximately
2,000 feet and over a hill from the nearest low area, known as Gum
Bottom. Moreover, Nathan Estates did not have access to industrial-
level power sources necessary to run pumps needed to divert water to
Gum Bottom.
11 SC-2024-0524
Plaintiff Amanda King recalled that the pond overflowed into the
roads in 2005 or 2006, after the City had completed its improvements.
She could not get to work because of the flooding and had contacted the
mayor. She later admitted that she did not remember whether the
flooding happened before or after the City's improvements. Her
interrogatory responses state that she believed that the flooding occurred
in 2005. Between 2005 and 2019, she recalled the pond overflowing into
woods nearby, but not over the roads. She never discussed the Nathan
Estates pond with any City official or employee between 2005 and 2019.
Her husband, plaintiff Brett King, testified that the flooding to their yard
happened in early 2005. He never saw the pond overflow any other time
between 2005 and 2019.
Plaintiff Tammy Michael testified that there was flooding to her
basement while it was under construction in late 2004 or early 2005. She
believed that the flooding was associated with rainfall from Hurricane
Katrina. However, Hurricane Katrina occurred in August 2005. She
recalled that water in the pond exceeded its banks multiple times
between 2005 and 2019. Water would get into the road, but the road was
12 SC-2024-0524
still passable by car. Before 2019, she had no conversations with any
City official or employee about the Nathan Estates pond.
Plaintiff Jamie Reed testified that he saw water from the pond
overflow into the streets two or three times between 2008 and 2019. He
did not complain to the City about the pond before 2019.
Plaintiff Charles Michael testified about problems with a drainage
ditch, which would cause water to back up into his yard. He would
contact the City, and officials would send someone to unclog the drain
and resolve the problem. He never had conversations with anyone with
the City about the Nathan Estates pond before 2019.
The plaintiffs' primary complaint seems to be that the City had no
plan in place to pump water out of the Nathan Estates pond to prevent
flooding to their houses in large rainfall events. Indeed, the City engineer
was unaware of any plan by the City to begin pumping water out of the
pond if it ever reached a certain level. The mayor agreed that, before the
flooding began in 2019, the City did not have a plan in place to pump
water from the Nathan Estates pond onto other landowners' property.
The City received heavy rainfall during four days in late February
2019, particularly on Friday, February 22, and Saturday, February 23.
13 SC-2024-0524
Areas within the City received between 12 and 16 inches of rain. The
parties presented conflicting evidence about the statistical probabilities
of the event. The City engineer did not know if rainfall during any 1 day
exceeded a 100-year rainfall event. He estimated that the combined 4
days were between a 100- to 300-year rainfall event. The civil engineer
who consulted with the City stated that the event exceeded the 1%, or
100-year rainfall event, probability. He stated that the event lasted
longer than the 24-hour standard used for design and that design
probabilities are not used to measure actual events.
Using the 24-hour-design probability standard, the plaintiffs point
to the City's drainage manual, which incorporates certain statistical
probabilities for planning purposes for new construction. According to
those probabilities, the plaintiffs say, the February 2019 rainfall over
specific 24-hour periods did not exceed a 25-year rainfall event. The State
climatologist who testified for the plaintiffs estimated that the event was
a 30-year to a 40-year rainfall event. Nonetheless, he determined that it
was the fourth largest on record for a four-day rainfall event for the area
and the third largest on record for a five-day rainfall event.
14 SC-2024-0524
Regardless of the statistical probabilities, it is undisputed that the
event created an emergency for the region. The area had experienced
significant rainfall during the preceding weeks. Those rains saturated
soils in the area, pushed groundwater tables up, and decreased the ability
of further rainfall to infiltrate soils. Moreover, the City ultimately
received more rain in late February than the county emergency-
management agency had predicted. The storms thus resulted in flooding
to multiple parts of the City's drainage system. Roads were closed in
places all over the City. State emergency-management officials sent
recovery teams to the area and worked with officials in surrounding
counties to manage government responses. The governor and other
agencies issued emergency declarations for several counties. The City
worked with the Red Cross to set up facilities nearby to help local
residents.
The day before the rains began, City officials examined the Nathan
Estates pond to confirm that it had more storage capacity. It did.
However, on Thursday morning, the pond overflowed into nearby roads,
which were carrying school traffic. City officials then ordered pumps and
began looking for places to divert water from the pond. City officials were
15 SC-2024-0524
unable to get immediate permission from an adjacent landowner to the
south to pump water onto his land. They were able to obtain permission
from a landowner over a hill, further away and to the east toward Gum
Bottom. To divert the water to Gum Bottom, the City had to order and
lay more than 1,800 feet of pipe over a road and across at least 2
residents' properties. The pipe was necessary to carry the water over a
hill to a point where gravity would carry it to the lower elevation where
the City had permission to direct the water.
As rains continued the next day, two extra pumps were set up at
the Nathan Estates pond. With those pumps, City officials were able to
keep the water level under control until the early morning hours of
Saturday, February 23, 2019. At that time, the rains became so heavy
that the area experienced additional flash flooding. The pumps had to be
stopped and moved back to keep them from being submerged. Shortly
afterward, the mayor called in fire and police departments to begin
evacuation of nearby houses. The area received even more rain over the
next two days. With pumping, the City was able to reduce the water level
approximately six inches per day; thus, it took several days to remove
water from the nearby roads.
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After the 2019 flood, the City worked with a civil-engineering firm
engaged in mapping flood zones for FEMA to analyze the event and to
make recommendations for how to prevent future flooding. The resulting
report noted that the "February 2019 event, and its similar follow-up in
2020, is not a typical storm that would be considered when drafting
protection levels from flood risk." It also stated that the "event does
highlight a need for more thoughtful protection measures across karst
regions. Also, regardless of the intended protection and any future
planning, a need exists to keep those already living in this community
safe from future flood risk." The report concluded that tripling the pump
capacity of the Nathan Estates pond would alleviate flooding problems to
residents during 100-year and 150-year rainfall events. The report also
suggested that a "proactive drawdown" of water in the pond would help
reduce the severity of the impact of larger events.
The City hired the firm to perform a feasibility study as a
supplement to that report. The study examined multiple locations to
determine where water from the Nathan Estates pond could be diverted.
The study was stopped after a few months, however, when each option
examined was determined to be cost-prohibitive or to involve annexation
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problems. The study was to be resumed if the City was able to obtain
federal grants to fund a project to divert water to another location.
The City ultimately obtained an easement from the landowner near
Gum Bottom to pump water from the Nathan Estates pond in
emergencies. The City installed a permanent force main and purchased
a portable pump to give it the ability to hold water at a lower elevation.
The City engineer did not know if the pump had been permanently
installed. There is no indication in the record regarding whether the City
tripled the pump capacity, as suggested by its consultant's report. There
is also no indication in the record regarding whether Nathan Estates
obtained industrial-level power necessary to run larger pumps. The City
engineer thought that whether the City could increase the pump capacity
in that way without exposing the City to suit from residents downstream
would be a legal question. Even with installation of the force main and
portable pump, the City engineer believed that the Nathan Estates pond
remains a retention pond rather than a detention pond because the water
must travel uphill before it can flow to other areas.
The City's engineering consultant testified that the City could have
reduced damage to the plaintiffs' houses by pumping more water out, but
18 SC-2024-0524
he did not know if the City could have prevented the flooding entirely.
Nor did he offer testimony about the feasibility of pumping during the
2019 flood.
The plaintiffs' expert witness ultimately concluded that the City's
post-2019 efforts at the Nathan Estates pond had been good, but he
believed that they should have been done sooner. In his opinion, because
the City had notice that the soil beneath the pond had poor drainage
quality, the City should have planned for an alternate means of diverting
water out of the pond in the event of back-to-back storms or intense rain.
His report acknowledged that he did not review any comprehensive plan
for stormwater drainage for the area and, thus, did not see how this or
surrounding sites should be designed or where water from the pond
might be taken.
The parties focus much of their arguments on whether the plaintiffs
may use the City's 2011 drainage manual at trial. The City argues that
use of the manual is barred by substantive immunity. Neither side relies
on the manual to support their arguments about municipal immunity
under § 11-47-190. The manual is of questionable relevance. It was
prepared and adopted in 2011 and applied to new development or
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improvement projects. Thus, it did not apply to the Nathan Estates pond
as originally constructed or to the City's 2005 improvements.
Nonetheless, the manual's design standards for detention ponds require
that they "attenuate the post development peak flow rates from the 2-
year, 5-year, 10-year and 25-year NRCS 24-hour design storms to
discharge at or below predevelopment peak flow rates." The manual's
design standard for retention ponds states:
"A retention basin should be sized so that the volume of the excavated material from the pond is equal to the difference between the pre-development and post- development runoff volume from the development. The volume calculation should be based on a 25[-]year 24[-]hour rainfall event. A 100[-]year 24[-]hour rainfall event should also be analyzed to ensure that no structures or roadways will be inundated."
Standard of Review
"A writ of mandamus is an extraordinary remedy, and it will be 'issued only when there is: 1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala. 1993)."
Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998).
Moreover,
20 SC-2024-0524
"[i]n reviewing a trial court's ruling on a motion for a summary judgment, we apply the same standard the trial court applied initially in granting or denying the motion. Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999).
" 'The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact.'
"742 So. 2d at 184. '[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)."
Swan v. City of Hueytown, 920 So. 2d 1075, 1077-78 (Ala. 2005). See Ex
parte Price, 256 So. 3d 1184, 1186-87 (Ala. 2018). These standards apply
in cases involving municipal immunity. See Ex parte City of Muscle
Shoals, 257 So. 3d 850, 854-56 (Ala. 2018).
21 SC-2024-0524
Analysis
The plaintiffs' pending claims against the City seek damages based
on negligence and trespass. The City argues that, under § 11-47-190, it
is immune from suit on those claims. That section provides:
"No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such 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 or her duty, or unless the said injury or wrong was done or suffered through the neglect or 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 an 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 for damages by reason of the unauthorized or wrongful acts or 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."
In Ex parte City of Huntsville, 399 So. 3d 1020, 1026 (Ala. 2024),
we recently stated:
"This Court explained in Ex parte City of Muscle Shoals[, 257 So. 3d 850 (Ala. 2018),] that this statute has long been held to limit municipal liability to two situations. 257 So. 3d at 855. First, municipalities may be liable for injuries caused by the wrongful conduct of their agents performed in the line of duty. Second, municipalities may be liable for
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injuries caused by their failure, upon notice, to remedy defects in public streets or buildings. Id."
Therefore, under § 11-47-190, the City may not be liable for the
plaintiffs' injuries unless their claims fall within one of these two
situations.
"[W]hen an issue of fact implicating whether immunity applies in a given case is disputed, then the issue may be submitted to a jury. …
"In the face of a properly supported motion for a summary judgment invoking the immunity expressed in § 11- 47-190 … it is incumbent upon the nonmovant to present substantial evidence of 'neglect, carelessness, or unskillfulness' by a municipal agent, officer, or employee, or to present substantial evidence that the municipality had actual or constructive notice of a defect and failed to remedy it and that such negligence or defect caused the plaintiff's injuries."
Ex parte City of Muscle Shoals, 257 So. 3d at 856-57.
Section 11-50-50, Ala. Code 1975, authorizes municipalities to
construct and maintain drainage systems. "[W]hile a municipality is not
required to exercise this authority, once it does so, a duty of care arises
and a municipality may be liable for damages proximately caused by its
negligence." City of Mobile v. Jackson, 474 So. 2d 644, 649 (Ala. 1985).
Moreover, this Court has held that "the liability for negligent design or
maintenance of drainage systems is analogous to that involved in the 23 SC-2024-0524
construction and maintenance of streets, alleys, or public ways or
buildings." Id. It is undisputed that the City undertook control and
maintenance of the Nathan Estates pond as part of its municipal
stormwater-drainage system within its authority under § 11-50-50.
Thus, either of the § 11-47-190 exceptions to municipal immunity may
apply to the City's improvements to, and maintenance of, the pond.
The parties focus much of their arguments on whether the
plaintiffs' claims are based on the City's alleged negligent maintenance
of the pond or on its negligent design of the 2005 improvements. That is,
they focus heavily on whether the plaintiffs' claims fall within the first or
the second exception to municipal immunity. This distinction can be
critical in cases involving statute-of-limitations problems. See, e.g.,
Reichert v. City of Mobile, 776 So. 2d 761 (Ala. 2000), and Long v. City of
Athens, 24 So. 3d 1110 (Ala. Civ. App. 2009). However, no such issues
have been raised here. Thus, we do not find the distinction to be critical
to our analysis, as the parties suggest it is.
Most of the facts presented by the evidence are undisputed. The
primary points of dispute are whether the Nathan Estates pond is a
detention pond or a retention pond, what level of probability the
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February 2019 rainfall event exceeded, and whether the pond had
overflowed into the road before or after the City's 2005 improvements.
We find that none of these factual issues are determinative of the
question of municipal immunity. Thus, they do not present material
questions of fact suitable for a jury to decide.
The plaintiffs' claims, for purposes of both § 11-47-190 exceptions,
rest exclusively on the proposition that the City did not plan to pump
water out of the Nathan Estates pond during heavy rainfall events. The
question, thus, is whether the City may be held liable for planning only
for small events, be that a failure of maintenance or of design.
The plaintiffs argue that City employees failed to regularly pump
water out of the pond and failed to draw down the water level of the pond
before the February 2019 rains. This, they say, was "neglect,
carelessness, or unskillfulness" of City agents or employees for which the
City may be held liable under § 11-47-190. None of the cases cited by the
plaintiffs involved a failure to plan for heavy rainfall events. See Ex
parte City of Muscle Shoals, 257 So. 3d at 850 (involving plaintiff injured
by falling through grate at city park); Long v. Jefferson Cnty., 623 So. 2d
1130 (Ala. 1993) (involving house built directly over sewer; title
25 SC-2024-0524
inspection failed to show county easement and sewer ultimately
collapsed); Lott v. City of Daphne, 539 So. 2d 241 (Ala. 1989) (involving
city modifications to drainage system that deliberately diverted water
across plaintiffs' property, causing erosion); City of Mobile v. Jackson,
474 So. 2d 644 (Ala. 1985) (involving city permitting adjacent property to
be raised, interrupting water flow on plaintiff's property and causing
flooding); and City of Montgomery v. Patterson, 80 So. 3d 264 (Ala. Civ.
App. 2011) (involving plaintiff being hit in head when faulty window
covering fell at government-owned facility).
Moreover, the plaintiffs repeatedly make the point that the only
means by which water may leave the Nathan Estates pond is by
evaporation or infiltration into the surrounding soil. Whether it is a
detention pond or a retention pond, it had no outlet through which City
employees could pump water. It was not designed that way. Thus,
pumping could not have been part of the City's regular maintenance of
the pond.
The plaintiffs' expert witness offered no opinion about the City's
maintenance of the Nathan Estates pond. A report prepared for the City
after the February 2019 flood recommended drawing down water in the
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pond as part of "maintenance" to prevent future flooding in heavy rainfall
events. However, this was recommended after the City had laid pipe
through which water could be pumped to Gum Bottom. The City
employees who maintained the pond before that pipe was installed could
not have acted neglectfully, carelessly, or unskillfully in failing to pump
where no pipe existed through which they could have pumped water out
of the pond. The question whether the pipe should have been installed
sooner, thus altering the design of the Nathan Estates pond, relates not
to maintenance, but to an alleged problem with the pond itself.
The parties focus their arguments heavily on whether there is
evidence indicating that the City had notice of a defect in the pond after
its 2005 improvements were completed. The City argues that evidence
indicating that the Nathan Estates pond flooded before those updates
were completed cannot be used to support the plaintiffs' claims. Only
evidence of flooding after the date the improvements were completed, the
City says, may be evidence of the notice necessary under the second § 11-
47-190 exception.
The plaintiffs focus on the testimony of Amanda King. She stated
that the pond flooded the roads so that they were impassable for several
27 SC-2024-0524
days in 2005, after the City had completed its improvements. However,
later in her deposition, she admitted that she did not know if that flooding
happened before or after the improvements were done. The plaintiffs
urge that her first testimony cannot be discounted. See Alabama Dep't
of Revenue v. Greenetrack, Inc., 369 So. 3d 640 (Ala. 2022), and McGough
v. G & A, Inc., 999 So. 2d 898 (Ala. Civ. App. 2008). The City says that
the testimony is tenuous at best and is no proof that the City was on
notice of a defect in the pond.
Whatever weight must be given to King's testimony, it is
undisputed that the City used FEMA mapping and probabilities in its
planning. Thus, it had notice that there were smaller chances of higher
flooding in any given year, e.g., a 1% chance of a 100-year rainfall event.
The City, likewise, would have had notice that there was some
probability of back-to-back storms that would impact its stormwater
drainage system.
At the Nathan Estates pond, the City determined to increase the
pond's capacity as much as possible within the area available. This was
done to prevent frequent flooding of the surrounding roads. The City
used the industry standard 24-hour probabilities and worked within its
28 SC-2024-0524
standards requiring mitigation measures capable of dealing with 25-year
rainfall events in making the improvements. The City did not design the
pond or make any plans for protecting the plaintiffs' houses in cases of
larger, less probable rainfall events. The material question is whether
the City may be held liable for that decision, i.e., whether that decision
led to a negligent design that created a defect in the pond.
The plaintiffs argue that the failure to plan for smaller probability,
higher magnitude rainfall events creates a defect in the pond. Their
expert witness testified that all ponds in a stormwater drainage system
should have some outlet by which water can leave the pond besides
evaporation or infiltration. He stated that the City could have done
something -- but he did not know what -- to plan for smaller probability
rainfall events before they happened. The City counters that the Nathan
Estates pond is a retention pond that, by definition, does not have a
positive outlet and often holds pools of water. The pond thus operates as
designed.
Our cases say that negligent design can form the basis of municipal
liability. See City of Mobile v. Jackson, 474 So. 2d at 649. However, the
determinative question in this specific case seems not to involve a fault
29 SC-2024-0524
in the design itself, but the City's choice in how to plan. The question is
whether the City may be held liable for planning only for 25-year rainfall
events at the Nathan Estates pond. This question involves broader
issues regarding the City's policy choices about whether to plan for
smaller probability floods, the effect on adjacent landowners, and
annexation problems. These issues touch on broader questions involving
the City's stormwater-drainage system as a whole and questions
involving other City residents, not just these plaintiffs.
These questions touch on issues of substantive immunity, as the
City suggests. See Rich v. City of Mobile, 410 So. 2d 385 (Ala. 1982).
However, we need not address them here. The plaintiffs' expert witness
testified that it was within standard practice for municipalities to plan
only for 2- to 25-year rainfall events. He identified a growing trend
among municipalities to require mitigation measures capable of dealing
with of 100-year rainfall events. However, he testified that, at the time
of the City's improvements to and maintenance of the Nathan Estates
pond, the City's standards required mitigation measures capable of
dealing with 25-year rainfall events. Thus, according to his testimony,
30 SC-2024-0524
the City's decision to plan for only 25-year rainfall events was within
common municipal practice.
The evidence produced did not show that the City breached any
duty it might have by failing to plan for larger, less probable rainfall
events. Thus, it does not show that City employees or agents acted with
"neglect, carelessness, or unskillfulness" in designing those
improvements or maintaining the pond as required by § 11-47-190.
Likewise, the evidence does not show that the City's design of
improvements to the Nathan Estates pond was outside common practice
and defective within the meaning of the term "defect" in § 11-47-190.
Thus, the municipal immunity of § 11-47-190 applies to bar the plaintiffs'
claims for damages against the City.
Because the plaintiffs' claims for damages are barred by § 11-47-
190, we have no need to address the City's argument that the plaintiffs
are barred by principles of substantive immunity from using the City's
drainage manual at trial to establish the City's standard of care.
31 SC-2024-0524
Conclusion
Based on the foregoing, we grant the City's petition and issue the
writ directing the trial court to enter a summary judgment for the City
regarding the plaintiffs' negligence and trespass claims.
PETITION GRANTED; WRIT ISSUED.
Stewart, C.J., and Shaw, Wise, Mendheim, Mitchell, Cook, and
McCool, JJ., concur.
Sellers, J., concurs in the result.