Opinion
CIVIL ACTION NO. 97-0778-CB-M.
March 16, 2001.
ORDER
Pursuant to the opinion of the United States Court of Appeals for the Eleventh Circuit, issued as mandate on September 13, 2000, and pursuant to prior orders of this Court granting summary judgment in favor of various defendants, it is hereby ORDERED, ADJUDGED and DECREED that this action be and hereby is DISMISSED with prejudice.
ORDER
This matter is before the Court on a renewed motion for summary judgment filed by the City of Mobile, the only remaining defendant in this action. Plaintiff was directed to respond to the motion on or before February 16, 2001, but has failed to do so. Upon review of the issues raised in the motion, the Court concludes that the City is entitled to summary judgment as to Plaintiff's remaining state law claims.
The facts of this case have been adequately set forth in previous orders and need not be repeated here. The individual defendants — police officers and firefighters employed by the City — have been granted discretionary function immunity with respect to Plaintiff's state law negligence claims. See Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000). Plaintiff has also asserted negligence claims against the City under a theory of respondeat superior based on the alleged negligence of the police officers and based on the alleged negligence of its firefighters. At issue here is whether the City is entitled to discretionary function immunity for the actions of its employees. For the reasons set forth below, the Court concludes that it is.
Alabama law provides statutory immunity to law enforcement officers "from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties." Ala. Code § 6-5-338(a). The statute also states that it "is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers." Ala. Code § 6-5-338(b) (emphasis added). The Alabama Court of Civil Appeals has concluded that "the plain language of § 6-5-338(b), clearly extends discretionary-function immunity to [a municipality]."Montgomery v. City of Montgomery, 732 So.2d 305, 312 (Ala.Civ.App. 1999). Because it has already been determined that the individual police officers are entitled to discretionary function immunity, the City is also entitled to immunity from plaintiff's claims based on the alleged negligence of those officers.
Whether the City is immune from liability for acts of its firefighters poses a slightly different question. The Eleventh Circuit held that the firefighters in this case are entitled to common law immunity. Taylor, 221 F.3d at 1260. Alabama courts have created a form of "vicarious "immunity that extends discretionary function immunity to cities and counties. In Gore v. City of Hoover, 559 So.2d 163 (Ala. 1990), the Alabama Supreme Court held that when a city is charged with liability for the acts of its employee under a theory of respondeat superior and the employee is immune from liability, then the city also cannot be held liable. See also Roden v. Wright, 646 So.2d 605 (Ala. 1994) (extending vicarious immunity to county). In this case, the Plaintiff alleges that the City is vicariously liable for the negligence of its firefighters. Since the firefighters have been granted discretionary function immunity, according to the holdings of Gore and Roden the City cannot be held liable.
Gore was subsequently overruled in part by Franklin v. City of Huntsville, 670 So.2d 848 (Ala. 1990). However, as Judge Albritton explained in Richards v. Southeast Alabama Youth Services Diversion Ctr., 105 F. Supp.2d 1268, 1288 (M.D.Ala. 2000), Franklin did not overrule the holding in Gore extending the employee's discretionary function immunity to the employer.
For the foregoing reasons, the City is entitled to summary judgment with respect to plaintiff's state law claims against it. Accordingly, it is ORDERED that the City's motion for summary judgment be and hereby is GRANTED.