Whatley v. Higginbotham

145 So. 3d 751, 2013 WL 5763273
CourtSupreme Court of Alabama
DecidedOctober 25, 2013
Docket1120873
StatusPublished
Cited by9 cases

This text of 145 So. 3d 751 (Whatley v. Higginbotham) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whatley v. Higginbotham, 145 So. 3d 751, 2013 WL 5763273 (Ala. 2013).

Opinions

PARKER, Justice.

Jerome Coleman and the City of Birmingham (“the City”) (hereinafter collectively referred to as “the petitioners”) petition this Court for a writ of mandamus directing the Jefferson Circuit Court (“the circuit court”) to vacate its judgment denying the petitioners’ motion for a summary judgment and to enter a judgment in their favor based on State-agent immunity. We grant the petition and issue the writ.

Facts and Procedural History

The facts are undisputed. Coleman is employed by the City as a police officer with the Birmingham Police Department (“the BPD”). On May 29, 2010, the BPD received a report that a vehicle was on fire on Interstate 459 (“1-459”). Coleman responded in a marked BPD vehicle that was equipped with emergency lights and a siren. Coleman was traveling west on Highway 280 toward the intersection of Highway 280 and the south access ramp of I-459 (“the intersection”) making continuous use of the BPD vehicle’s emergency lights; Coleman did not make use of the siren on the BPD vehicle while driving west on Highway 280. James Higginbotham, a firefighter employed by the Birmingham Fire and Rescue Service (“BFRS”), was responding to the same report in a BFRS engine and was following approximately 500 feet behind Coleman also heading west on Highway 280 toward the intersection; the emergency lights and siren on the BFRS engine were continuously on while Higginbotham was traveling west on Highway 280.

Coleman reached the intersection and proceeded to drive “up to the median (center) in front of the turn lanes in the di[753]*753rection of the I[-]459 South access ramp.” Petition, Exhibit A, at pp. 3-4. Coleman did not drive through the intersection at that time, but stopped short of the eastbound lanes of Highway 280 in the median. The traffic lights controlling the westbound Highway 280 turn lanes leading to the 1-459 south access ramp, upon which Coleman was traveling, were red; Coleman had to drive through a red light in order to enter the median. Coleman “had [his] emergency lights on and had [his] siren make a yelping sound to alert oncoming traffic.” Whatley’s response, Tab D, unmarked exhibit A, at p. 4. Coleman made use of the siren on the BPD vehicle, but he did not make continuous use of the siren. In response to Coleman’s maneuver, the eastbound oncoming traffic on Highway 280 came to a halt in all but one of the eastbound lanes. Coleman sought to stop the eastbound traffic of Highway 280 so that Higginbotham, who was making continuous use of the emergency lights and siren on the BFRS engine, could navigate the BFRS engine he was driving into the intersection, across the eastbound lanes of Highway 280, and onto the south access ramp of 1-459.

Higginbotham approached the intersection making continuous use of the BFRS engine’s emergency lights and siren and entered the intersection, passing the BPD vehicle Coleman was driving, which was stopped in the median. As Higginbotham was passing through the intersection, the BFRS engine Higginbotham was driving was struck by a large commercial truck owned by Allen Tree Service and being driven by Eric Whatley. The traffic signal controlling the eastbound Highway 280 traffic, from which direction Whatley was traveling, was green at the time of the accident. In his deposition testimony, Coleman testified that it was possible that Whatley could have been too far away from the intersection at the time Coleman “yelped” the siren of the BPD vehicle he was driving to hear the “yelp” of the siren. There is nothing in the record to indicate whether Whatley actually heard the “yelp” of the siren of the BPD vehicle Coleman was driving or the continuous siren of the BFRS engine Higginbotham was driving. Whatley sustained injuries as a result of the accident.

Coleman never drove the BPD vehicle into the path of the large commercial truck Whatley was driving. Neither did the BPD vehicle Coleman was driving ever come into contact with the truck Whatley was driving.

On February 2, 2011, Whatley sued Higginbotham, the City, and several fictitiously named defendants. Whatley asserted claims of negligence and wantonness against Higginbotham and vicarious liability against the City. On September 7, 2011, Whatley filed an amended complaint adding Coleman as a defendant and asserting claims of negligence and wantonness against Coleman. On October 10, 2011, Coleman filed an answer denying all the allegations in Whatley’s complaint and raising the affirmative defense of State-agent immunity.

On February 4, 2013, the petitioners filed a motion for a summary judgment.1 The petitioners argued that Coleman was immune from Whatley’s action against Coleman pursuant to § 6-5-338, Ala.Code 1975, and the doctrine of State-agent immunity set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000), as modified by Hollis v. City of Brighton, 950 So.2d 300 (Ala.2006). Specifically, the petitioners argued that Coleman was entitled to State-agent immunity because he was acting in [754]*754accordance with § 32-5A-7, Ala.Code 1975, which states, in pertinent part:

“(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
“(b) The driver of an authorized emergency vehicle may:
“(1) Park or stand, irrespective of the provisions of this chapter;
“(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
“(3) Exceed the maximum speed limits so long as he does not endanger life or property;
“(4) Disregard regulations governing direction of movement or turning in specified directions.
“(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of Section 32-5-213 and visual requirements of any laws of this state requiring visual signals on emergency vehicles.”

The petitioners alternatively argued that, even if Coleman is not entitled to State-agent immunity, the petitioners were entitled “to judgment as a matter of law because [Whatley] cannot produce substantial evidence proving each element of negligence,” specifically the element of proximate causation. On February 27, 2013, Whatley filed a response to the petitioners’ summary-judgment motion arguing that Coleman was not entitled to State-agent immunity because he did not comply with § 32-5A-7 by simply “yelping” the siren of the BPD vehicle he was driving; Whatley argued that § 32-5A-7 required Coleman to make continuous use of the siren of the BPD vehicle Coleman was driving.

On March 12, 2013, the circuit court denied the petitioners’ summary-judgment motion, stating:

“Pending is a motion for summary judgment, filed by defendant Jerome Coleman, a Birmingham police officer, and defendant the City of Birmingham. [Whatley] opposes this motion.
“The defendants’ motion for summary judgment is first based on the doctrine of State-agent immunity, Ala.Code [1975,] § 6-5-338, has long provided such immunity to peace officers of this State. As made clear in Hollis v.

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Bluebook (online)
145 So. 3d 751, 2013 WL 5763273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whatley-v-higginbotham-ala-2013.