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Saturday, September 21, 2019

Alabama Supreme Court upholds summary judgment rejection in wrongful death lawsuit

By David Hutton | Oct 3, 2017

MONTGOMERY, Ala. (Legal Newsline) - The Alabama Supreme Court concluded the Dallas Circuit Court was correct when it denied a motion for summary judgment in a wrongful death lawsuit against Terrence Venter and the city of Selma.

In a 4-4 split decision, the court denied the petition Sept. 22.

Chief Justice Lyn Stuart and associate justices James A. Main, Tom Parker and Glenn Murdock concurred, while Michael F. Bolin, Greg Shaw, Alisa Kelli Wise and Tommy Bryan cast dissenting votes.

Associate Justice William B. Sellers did not rule on the case.

Venter and the city had asked the Alabama Supreme Court for a writ of mandamus, seeking to have the Dallas Circuit Court’s decision rejecting their motion for summary judgment overturned.

The wrongful death lawsuit was filed by Mary Vick, who was administrator of the estate of Aubrey Vick, who was killed when the vehicle he was driving was struck by a fire truck driven by Venter in September 2008.

In the original complaint, Vick maintained Venter was negligent and the city also was liable for the negligence. The suit also alleged the city was negligent in the installation, design and maintenance of a street light at the intersection where the accident occurred.

In seeking a writ of mandamus, Venter and the city maintained the trial court should grant summary judgment on the grounds of state-agent immunity and substantive immunity, according to the Supreme Court's opinion.

The state's high court only addressed the issue of whether Venter could seek state-agent immunity, maintaining he did not prove that at the time of the accident he was doing anything that would qualify him for state-agent immunity.

As a result, Venter and the city did not offer any cases to demonstrate that immunity was extended to a fireman who was driving routine routes when an incident occurred.

According to his own affidavit, Venter had admitted he was on his way back to the station after “riding around assigned territory” in the city.

On his way back to the station, Venter also had stopped at a grocery store.

“Venter's action in returning to the fire department after an afternoon of patrolling, in conjunction with stopping at the grocery store, cannot be equated with performing a function that would entitle him to state-agent immunity; rather, such action can be characterized only as a routine action requiring the exercise of due care,” the court wrote in its opinion.

In a dissenting opinion, Shaw noted that the Alabama Supreme Court in Ex parte Cranman held a “state agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's... formulating plans, policies or designs.”

“I believe that the firefighter's activities in the instant case of driving around the city of Selma, learning streets and areas, [and] inspecting streets and layout of the area are part of 'formulating plans’ for purposes of Cranman State-agent immunity,” the justice wrote.

Shaw further added it appeared the firefighter was in the process of learning routes and city streets when the accident occurred.

Wise concurred with Shaw’s dissenting opinion while Bolin and Bryan did not comment on their dissenting votes.

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