ELECTRONICALLY FILED 4/1/2013 4:34 PM 47-CV-2009-000759.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C.

SMITH, CLERK

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA KELLY L. SPURLOCK, as personal representative of Darren Spurlock, deceased, Plaintiff v. CITY OF HUNTSVILLE, et al., Defendant ) ) ) ) ) ) ) ) ) ) )

CV-2009-000759

SPURLOCKS COMBINED OPPOSITION TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT Kelly Spurlock, the plaintiff in this wrongful death action, hereby offers this Opposition to the Motion for Summary Judgment by Defendants City of Huntsville Alabama, Investigator Tony McElyea, Investigator Terry Lucas, and Investigator Jimmy Anderson and to Defendant Jimmy Williams Motion for Summary Judgment, both filed on December 13, 2012. Because Alabama law allows for wrongful death actions against officers improperly involved in pursuits and because there exist genuine disputes of fact regarding breach, cause and immunity, the motions are due to be DENIED in their entirety. STANDARD OF REVIEW The general standard for summary judgment is well known and properly detailed by defendants. Under the Alabama Rules of Civil Procedure, summary judgment is appropriate if there is no genuine issue of material fact and the moving
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party is entitled to a judgment as a matter of law. Ala. R. Civ. P. 56. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the non-movant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 798 (Ala. 1989). Substantial evidence is evidence of such weight and quality that fairminded 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, 71 (Ala. 1989). The immunity-specific standard has been impacted by recent developments in the law, is arguably less clear and is left partially unaddressed by the defendants. The Alabama Supreme Court has established a burden-shifting process that applies when a party raises the defense of state-agent immunity. Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003). Under this process, the defendants bear the burden of demonstrating that Spurlocks claims arise from a function that would entitle the defendants to immunity. Giambrone, 874 So.2d at 1052. If the defendants make such a showing, the burden then shifts to Spurlock who then bears the burden of establishing that the defendants acted willfully, maliciously, fraudulently, in bad faith, or that they was not exercising his judgment in accordance with the manner set forth in Cranman. See also Ex parte Hudson, 866 So.2d 1115, 1118 (Ala.2003); Howard v. City of Atmore, 887 So.2d 201, 205 (Ala.2004).
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A relatively recent decision by the Alabama Supreme Court, Suttles v. Roy, 2011 Ala. LEXIS 112, No. 1071453 (Ala. July 22, 2011), makes clear that a trial court must be very careful how it makes procedural decisions governing stateagent immunity. Under Roy, it seems that it is neither appropriate for the trial court to leave the decision completely in the hands of the jury nor to exclude the jury from resolving genuine disputes of fact with proper instruction from the court. In discussing this issue in Roy, the Court held as follows: Prior decisions of this Court state that [t]he applicability of the doctrine of discretionary function [now called State-agent immunity] must be determined on a case-by-case basis, and it is a question of law to be decided by the trial court. Ex parte Sawyer, 984 So. 2d 1100, 1106-07. [ . . . ] [...] When applied in the context of a motion for a summary judgment, this process may result in an issue of disputed material fact, and a determination of that fact may require resolution by a jury: "If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P." Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002); Blackwood v. City of Hanceville, 936 So. 2d 495, 507 (Ala. 2006) (holding that there was a genuine issue of material fact as to the Stateagent defendant's rate of speed; a jury's determination of that speed would determine whether the defendant was entitled to State-agent immunity and privilege under Ala. Code 1975, 6-5-338(a) and 32-5A-7(b)(3)). The existence of a genuine issue of material fact may require a factual issue to be determined by a jury, "under appropriate instructions from the trial court," Blackwood, 936 So. 2d at 507, but the availability of State-agent immunity is ultimately a question of law to be determined by the court. 2010 Ala. LEXIS at Part III (emphasis added).

Therefore, to the extent this Court cannot on its own resolve the clear disputes of fact present in this action, the Court seems required by Roy to withhold final judgment until a jury can resolve those disputes, likely through what the Roy decision seems to imply would be special interrogatories put to the jury prior to or along with a general verdict form. This is consistent with the process federal courts have adopted to resolve factual disputes relevant to Section 1983 immunity decisions: submit special interrogatories to the jury along with a general verdict form, use the answers to decide immunity and then only enter the verdict if consistent with the immunity decision. FACTS Spurlock takes little issue with the facts as set forth by the defendants in their filings. While there are disputes of fact -- primarily regarding speeds and the manner in which the beginning of the chase unfolded according to Cox vs. the officer defendants -- the officer defendants largely acknowledge those via statements and/or footnotes in their narrative summaries. The primary factual dispute revolves around whether or not the officer defendants violated state statutes and/or their own policies in initiating and continuing the pursuit. Several additional facts are relevant to that question: 1. Research shows that 30 to 45 percent of high-speed chases end in a crash, 20 percent result in an injury and 1 percent in death. (Alpert Depo., p. 130, Ex. 8)

2. The City of Huntsville had a policy governing pursuits, adopted by STAC, requiring that officers not begin or immediately terminate a chase whenever the need for immediate apprehension is outweighed by the danger to the public. (Williams, p. 41) 3. Defendant Jimmy Williams testified that he has preached that he would terminate chases in drug cases because its just white powder and not worth anybody getting hurt over. (Williams, p. 88) 4. Rex Reynolds, who was then director of public safety for Huntsville, testified that an officer who was chasing a suspect and observed that suspect drive 90 mph, run a red light and have a wreck could draw th[e] conclusion that the suspect would continue driving 90 mph, running red lights and having wrecks. (Reynolds Depo., p. 34) 5. Dan Busken, who was Madison police chief and a STAC Board member at the time, testified that the chase was a violation of policy, an opinion he said was supported and confirmed after he read the depositions of the officers. (Busken Depo., pp. 27-34). 6. Busken further testified that Henry Reyes, who was the police chief of Huntsville at the time and also a STAC board member, told Busken that he, Reyes, thought the chase was out of policy.1 (Busken Depo., p. 156)
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Reyes testified that he and Busken did have a conversation and that everything Busken testified to in deposition about that conversation was accurate or pretty close except for the fact that Reyes told Busken that he, Reyes, thought the chase was out of policy. (Reyes Depo., pp. 40-42) 5

7. Busken further testified that Lt. Gerald Norris, a Huntsville officer and STAC supervisor, told him that had he, Norris, been on duty, the chase never would have happened, an indication that it was out of policy.2 (Busken Depo., p. 23) 8. Geoffrey P. Alpert, Spurlocks retained expert, testified that the chase violated policy. (Alpert Depo., p. 96, 100, 110-12, Ex. 12 [I think the pursuit was not justified at all.]) 9. Alpert testified that Jimmy Williams violated policy when he failed to properly supervise and terminate the chase. (Alpert Depo., p. 100, 108-109, 164, 182, 200-201, Ex. 12) 10. Research shows that 75 percent of fleeing suspects say that they would stop fleeing shortly after police terminated a chase: in a neighborhood within 2 blocks, on highways and freeways within 2-2.5 miles. (Alpert Depo., Ex. 8) 11. The chase at issue spanned 11.27 miles, including more than 4 miles from the entrance to Redstone Arsenal to the crash site. (Keener Aff., Def. Ex. R; Alpert Depo., p. 95) 12. Alpert testified that in his opinion the wreck with Darren Spurlock would have been highly unlikely had the officers either failed to initiate or decided to terminate their chase. (Alpert Depo., pp. 178-79)

In deposition, Norris denied making the statement. (Norris Depo., p. 17) However, Reyes in his deposition confirmed that he heard Norris make the statement as well. (Reyes Depo., p. 31) 6

13. Cox testified that she would have stopped right away if the officers had terminated the chase at any point. (Cox Depo., pp. 123-24) ARGUMENT The defendants make three basic arguments: (1) that the officers were not negligent as a matter of law, (2) that none of them were the cause of Darren Spurlocks death, and (3) that they are in various ways immune from suit. Spurlock will address each argument the order that they were raised by the defendants. 1. Breach In part A.1. of each of their briefs, the defendants argue that they acted reasonably as a matter of law. Th[e] [Alabama Supreme] Court has often noted that questions of negligence incorporate factual evaluations that are almost always within the province of the jury. Gulledge v. Brown & Root, Inc., 598 So. 2d 1325 (Ala. 1992) (emphasis added). As detailed below in the immunity section of her response, Spurlock has presented substantial evidence both that the defendants violated their own mandatory policies and that they violated Ala. Code 32-5A-7. Violation of statutes and/or policies is certainly substantial information from which a jury could conclude that the defendants were negligent. 2. Cause The Alabama Supreme Court has recognized that a lack of due care on the part of a police officer in operating his vehicle could be the proximate cause of the
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injuries sustained by, or the death of, a third party involved in a collision with the fleeing offender. Seals v. Columbia (Seals I), 575 So. 2d 1061, 1063 (Ala. 1991) (emphasis added). The Seals I decision overturned a trial court order dismissing the plaintiffs complaint in a high-speed chase case in which the plaintiffs decedent was killed when a fleeing suspect crossed the center line and impacted her vehicle head on. After discovery, the case came back to the Court in 1994. The trial court, this time at summary judgment, had again ruled as a matter of law that there was no proximate causation because it was the fleeing suspect, not the defendant officer, who had impacted the decedants vehicle. In Seals v. City of Columbia (Seals II), 641 So. 2d 1247, 1249-1250 (Ala. 1994), the Court again reversed. The defendants ask this Court to ignore this precedent and instead apply Doran v. City of Madison, 575 So.2d 1308, a 1998 Alabama Supreme Court decision, in granting their motions for summary judgment. Doran also involved the death of an innocent third party hit by the fleeing suspect, and the Court found no proximate causation Because of the seeming conflict between Doran and both Seals decisions, the Courts rationale in Seals II, which includes the Courts explanation of how to reconcile the cases and the Courts summary of the historical development of this law, is instructive: The City would have us affirm the summary judgment on the authority of Blair v. City of Rainbow City, 542 So. 2d 275 (Ala. 1989), and Doran v. City of Madison, 519 So. 2d 1308 (Ala. 1988). While we reverse the summary
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judgment in this case, we note that this reversal is not inconsistent with our holdings in Blair and Doran. In Blair, the administrator of the estate of Donald Ricky Blair, who was killed while being pursued at a high speed by the police, sued Rainbow City and others, alleging that they were responsible for Donald Blair's death. The administrator also alleged civil rights violations and sought damages under 42 U.S.C. 1983. Sue 542 So.2d at 275. In Blair, it was the fleeing offender who was killed in the chase. He had ignored the siren and blue light signals of the officers to pull over. In doing so, he elected to evade the police, and he died as a result of injuries when his own motorcycle left the road. 542 So.2d at 276. Clearly, in Blair, the fleeing offender was responsible for his own injuries, because, as this Court stated in the opinion, he could have pulled over at any time during the chase. 542 So.2d at 276. In Doran, police officers were pursuing a vehicle driven by a person suspected of driving under the influence of alcohol. 519 So.2d at 1310. In support of their motion for summary judgment, three officers offered affidavits tending to show that at all times during their pursuit of the vehicle they had used their sirens and their blue lights. The accident occurred when the fleeing vehicle proceeded through an intersection and struck another vehicle. The police cars were in not involved in the collision. In Doran, in opposition to the motion for summary judgment, the plaintiff offered affidavits tending to show that the police officers exceeded the speed limit while in pursuit; however, there was no evidence offered to show that they did not exercise due care in their pursuit. 519 So.2d at 1314. Justice Houston stated in this Court's opinion: "The mere fact that a police officer exceeds the maximum speed limit during a pursuit, such as the one in the present case, does not present a genuine issue of material fact as to the liability of that officer for negligence. See 32-5A-7, [Ala. Code 1975], and Madison v. Weldon, 446 So. 2d 21 (Ala. 1984). There can be little doubt that the high speed pursuit by the police officers contributed to Lindsey's reckless driving in this case. However, the rule regarding the conduct of a police officer in pursuit of an escaping offender is succinctly stated in Madison: "'"The rule governing the conduct of [a] police [officer] in pursuit of an escaping offender is that he must operate his car
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with due care and, in doing so, he is not responsible for the acts of the offender. Although pursuit may contribute to the reckless driving of the pursued, the officer is not obliged to allow him to escape."' 446 So. 2d at 28, quoting City of Miami v. Horne, 198 So. 2d 10 (Fla. 1967)." 519 So.2d at 1314. In Doran, the plaintiff presented no evidence that the police officers had operated their vehicles without due care. Again, this Court stated in Seals v. City of Columbia, 575 So. 2d 1061 (Ala. 1991): "Neither Madison v. Weldon, nor Blair v. City of Rainbow City, nor Doran v. City of Madison stands for the proposition that in order to state a claim upon which relief could be granted, Seals had to specifically allege that Officer Cook's vehicle came into contact with the vehicle in which his daughter was riding or that Officer Cook otherwise 'directly' caused his daughter's death." 575 So.2d at 1064. In opposition to the motion for summary judgment, Seals offered evidence tending to show that Cook did not discontinue his pursuit of Watford once the roadblock was in place. While Cook disputed this fact, he did state in his deposition that in regard to pursuit of a fleeing offender, proper procedure was to back off once a roadblock was in place. Seals's expert testified that Cook acted negligently and that no pursuit was necessary because a road block was in place. Thus, the plaintiff's evidence created a genuine issue of material fact. The summary judgment was inappropriate and must be reversed. Seals II, 641 So. 2d at 1249-1250. Following Seals II, the Alabama Supreme Court has only once discussed this issue at any length. Gooden v. City of Talladega, 966 So. 2d 232 (Ala. 2007) involved a wrongful death claim by the mother (and representative) of the

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deceased fleeing suspect. Rather than dismiss the appeal on this ground, the Court nevertheless applied Seals II and distinguished it as follows: Elisha[] [Goodens] case, however, is distinguishable from Seals. In Seals, a genuine issue of material fact existed as to whether the pursuing officer had violated the rule requiring a pursuit to end once the officer was notified of the existence of a roadblock. Moreover, there was expert testimony in Seals to the effect that the officer was negligent by continuing to pursue the suspect after the suspect had turned off the headlights on his vehicle. Thus, in Seals the plaintiff's theory of proximate causation was supported by more than speculation or conjecture; that is, there was substantial evidence suggesting that the officer was negligent and that his negligence had proximately caused the death of the driver of the vehicle struck by the fleeing suspect's vehicle. 966 So. 2d at 244. Thus, the Court seems to be suggesting that if the plaintiff can offer substantial evidence that the pursuing officer was negligent and/or violated a policy in his pursuit along with substantial evidence of causation (in Seals via expert testimony), then even a fleeing suspect could overcome summary judgment on causation. Surely, that remains the case for an innocent third party such as Darren Spurlock. As the Citys brief correctly points out (p. 12), the Eleventh Circuit has discussed this issue post-Seals in an unpublished opinion. Belew v. United States, 263 Fed. Appx. 1 (Oct. 17, 2007). In that case, the Court affirmed a district courts dismissal of a claim by a non-driving passenger in the vehicle with the fleeing suspect, cited Seals, and like the Alabama Supreme Court in Gooden, focused on the lack of expert testimony establishing causation.

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In summary, only once, in Seals II, has the Alabama Supreme Court considered summary judgment in a case (1) involving the death of an innocent third party (rather than the fleeing suspect) and (2) where the plaintiff has offered substantial evidence of causation (through testimony of an expert). The Court reversed and remanded the trial court order, which had granted summary judgment on proximate causation grounds just as the defendants ask this Court to do here. But, this Spurlock case (1) involves, without any dispute, the death of an innocent third party, Darren Spurlock (rather than the feeling suspect, Cox), and (2) includes, as the testimony below will demonstrate, substantial evidence of causation (through testimony of an expert, Dr. Alpert, and the fleeing suspect herself, Ms. Cox). Dr. Alpert testified as follows: Q. And specifically with regard to this case, you understand that Valerie Cox was the offender that was being pursued, or at least she was driving the vehicle; correct? A. Right. Q. You cannot tell a jury in this case what she, in fact, would have done had the pursuit been terminated at some point prior to the accident? A. I cannot tell you, the jury, or anyone else what she would have done specifically, no. I would be talking about in the aggregate what would happen. Q. At best, you can make a prediction as to what she would have done based upon your research of high-speed pursuits? A. Correct.
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[...] Q. Opinion number 3 is that the continued pursuit was a proximate cause of the crash. What leads you to the conclusion that that is the case? A. Because it's my opinion that it's more likely than not she would have slowed down and certainly not taken the route that she did, had they not been chasing her. Q. And we talked about this at the very beginning of your deposition. You cannot offer any assurance, and certainly not give a guarantee, that had this pursuit stopped at some point before it ended, that she would not have had this accident? A. I can't give you a hundred percent assurance; but the longer this goes on, the more assured I am that this wouldn't have happened. The fact she broke through a military gate, had she not been being chased, I can't give you a hundred percent assurance; but it's highly unlikely that would have happened. Q. But you cannot rule out the possibility that she would have crashed into Mr. Spurlock, regardless if they had stopped at the gate, for example? A. Well, she wouldn't have gotten in. I tried that. But, no, I can't give you a hundred percent assurance. Q. Can you quantify it at all? A. No. I mean, it's highly unlikely. [...] Q. Have you done all the work that you believe to be necessary to provide the opinions in this case that you're going to be asked to provide? A. Well, the only thing I would like to do is find out -- well, the answer is yes. I would like to find out what Mrs. Cox has to say, if she has anything to say;....

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(Alpert Depo., pp. 58-59, 178-79, 183-84). Ms. Cox, who testified from prison under a federal sentence that will likely keep her imprisoned for the rest of her life, testified as follows: Q. When [the officers] first came up to you where they drew the guns and used the F word when you first ran, do you know what I am talking about? A. Yes. Q. Had they approached you professionally, ...identified themselves as police officers and asked you to please stop, do you think you would have run to begin with? A. No, I wouldn't have. Q. Start with me on the part of the chase once you realize it's police behind you, are you with me so far? A. Yes. Q. At any point if they would have stopped chasing you, what would you have done? A. I would have stopped there. There would have been nothing else to run from. I would have stopped. But I would have been mindful that eventually it was going to catch up with me. But, yes, I would have stopped. Q. If they had stopped at any point before the wreck, do you think you would have hit Darren Spurlock? A. I don't. (Cox Depo., pp. 123-24) (objections omitted)

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The above conclusions of Dr. Alpert and Cox are supported by the only research available on the subject, which was completed by Dr. Alpert. That research shows that 75 percent of fleeing suspects would stop fleeing shortly after police terminated a chase: in a neighborhood within 2 blocks, on highways and freeways within 2-2.5 miles. This chase spanned more than 11 miles, including more than 4 miles from the entrance to Redstone Arsenal to the crash site. This gave the defendants multiple opportunities throughout the chase to terminate the chase and save Darren Spurlocks life. Even if they had simply stopped at the gates of Redstone Arsenal, the research -- along with Ms. Coxs own testimony -indicates that the crash never would have occurred. 3. Immunity Spurlock will first address the defendants arguments that they are protected by state-agent immunity as defined by Cranman, Ala. Code 6-5-338(a) and Hollis v. City of Brighton. She will then address the alternative immunity arguments, one by Jimmy Williams that he is absolutely immune from suit and another by the City that it too is essentially absolutely immune. a. Stage-agent immunity Spurlock concedes that all of the individual defendants have met their burden under the first prong of the Cranman burden shifting process to show that they were involved in law enforcement activities, or in the case of Jimmy Williams, both engaged in law enforcement activities and supervising other
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employees. Further, Spurlock intended with her amendments to the complaint to do away with any claims of intent, malice or bad-faith against the individual defendants and to instead proceed only on her negligence and wantonness claims against the individual defendants and her Section 11-47-190 claim against the City. To the extent the Court considers any claims based on intent, malice or bad faith to still be pending, they should be dismissed. These concessions narrow the issue to whether the individual defendants exceeded their authority, and more specifically, to whether they violated Ala. Code 32-5A-7 and/or specific applicable City policies. While the City presents evidence that they did not, Spurlock below presents ample evidence that they did, thus creating a genuine dispute of fact which requires the Court to deny summary judgment, and under Roy, specify that issue for the jury to decide at trial. The parties agree that all the defendants are entitled to state-agent immunity if they did not violate any statute or policy but that they are stripped of such immunity if they did. There is no dispute over which statutes or policies are at issue nor over the authenticity of the policies. Further, the defendants do not dispute that the statutes and policies were in effect at the time or that they were bound to follow them. The only dispute is over whether or not they were violated. As detailed above, Spurlocks qualified, retained expert, Geoffrey P. Alpert, testified that the chase violated policy, that policy required that it never be initiated and that once initiated it be terminated. Along the same lines, Daniel J. Busken,
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who is now chief of police in Greenville, Texas, and who was then chief of police of Madison City and a board member of the very STAC unit for whom the defendant officers were working, testified that the chase was out of policy and that multiple Huntsville officials privately felt the same way. At this summary judgment stage, the Court must accept this testimony as true and construe it in the light most favorable to the plaintiff. In so doing, a clear dispute requiring jury determination is evident. As for Ala. Code 32-5A-7, Spurlock does not dispute that the defendants were driving an authorized emergency vehicles and responding to an emergency call as set out in 32-5A-7(a). There is no dispute that the defendants were exceeding the maximum speed limit as set out in 32-5A-7(b). Spurlock does not dispute that the defendants were making use of an audible siren and visual lights as required by 32-5A-7(c). However, the statute requires even under these circumstances that the defendants, in exceeding the speed limit, not endanger life or property, 32-5A-7(b)(3) and drive with due regard for the safety of all persons, 32-5A-7(d). In 2006, the Alabama Supreme Court provided guidance here in deciding Blackwood v. City of Hanceville, 936 So. 2d 495. In reversing the Cullman trial courts order granting summary judgment to the individual defendant on principles of state-agent immunity, the Court ruled that under the facts presented by Blackwood, a municipal officer could be stripped of state-agent immunity under
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Ala. Code 32-5A-7, even if making use of lights and siren, if a jury found that in exceeding the speed limit the officer either endanger[ed] life or property or failed to drive with due regard for the safety of all persons. 936 So. 2d 495. The Court was especially moved by the speeds at issue, 91-100 mph, and the individual defendants own admissions that such speeds under the circumstances would be unsafe and not reasonable. This case presents the same -- the same speeds as Blackwood and essentially an admission by one defendant that such speeds are unsafe. Officers Anderson, Lucas and Williams all testified that the speed of the chase exceeded 90 mph on Martin Road after entering the arsenal. Cox testified that the speeds reached 100 mph both on Drake and on Martin Road. Officer Anderson testified as follows: Q. Okay. What is the fastest you think you went during the whole thing? A. The fastest. Probably when I was trying to catch up with her on Martin Road to keep her in sight. Q. So that would be after she ran the [light at] Golf -- but before they passed you? A. Yes. Q. And what would that speed be in your best judgment? A. Probably around 90 miles an hour. (Anderson, pp. 51-52) Officer Lucas testified as follows: Q. Do you think you ever eclipsed 100? A. No, sir, I don't think so.

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Q. Did you get close? A. I think 90, maybe 91 to my recollection is where I was at. (Lucas, p. 68) And Officer Williams testified as follows: Q. Okay. Do you know that in fact now it's undisputed that at times during the pursuit, the pursuit reached speeds at or above 90 miles an hour? A. Yeah, I learned while doing my after-action report at some time, yes. (Williams, p. 77) Valorie Cox had the speeds a bit higher on Martin and much higher on Drake: Q. You believe that you reached a top speed at some point in time on Drake of a hundred miles an hour? A. Yes. [...] Q. All right. Same question for Martin Road. What do you believe your top speed was on Martin Road? A. I was flying on Martin Road. It was a straight shot. There was no traffic there. That's where I hit my highest rate of speed. Q. What is your judgment as to what that speed was, that is top speed? A. I don't think I was doing exactly a hundred but it was close to a hundred miles per hour. (Cox, pp. 80-82) And Officer McElyea, like the officer in Blackwood, essentially admitted that such speeds were unsafe. Q. At [the] point [of entering the arsenal], would you agree that the speed of the vehicle you were in reached speeds at or above 90 miles an hour? A. I cannot say.

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Q. Do you think speeds of 90 plus miles an hour in that situation were safe? [...] A. I can't say we were going that fast. If we were going 90 plus -- I don't believe we were. I just can't answer that question. I do know that there was no traffic on the road, and it was a straight road. Q. But you can't answer the question whether, if y'all were going 90 plus, if that would be safe or not under the circumstances? [...] A. Again, I don't know how fast we were going. Q. Sure. Assume y'all were going 90 plus. Do you think that would be a safe speed under the circumstance or not? A. Again, no traffic, dry streets, I don't -Q. And I'm just looking for a "yes", "no" or "I'm not sure." A. Yeah. I'm not sure. (McElyea, pp. 35-36). On review of a summary judgment, the evidence is to be construed in the manner most favorable to the nonmovant, and all doubts are to be resolved against the movant. Franklin v. City of Huntsville, 670 So. 2d 848, 849 (Ala. 1995). Under these facts, it would seem to be error under Blackwood for this court to grant summary judgment in favor of the defendants on principles of state agent immunity. In Blackwood, the Court reversed the summary judgment and remanded the case to the trial court for further proceedings not inconsistent with this opinion. 936 So. 2d 508. Earlier in the opinion, the Court had stated as follows:

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It will be for the jury to decide [the defendants] actual rate of speed on the occasion in question and, under appropriate instructions from the trial court, to decide whether, acting within his discretion to exercise his best judgment, [the defendant] should have known that the speed at which he was driving, under all the attendant circumstances, endangered life or property and constituted a reckless disregard for the safety of others, or whether he was acting with due regard for the safety of others. If the speed as determined by the jury is found by it to have been such as would necessarily endanger life or property and be a violation of [the defendants] duty to drive with due regard for the safety of others, [the defendant] will not be entitled to the protection of the immunity and privilege resulting from the interaction of 6-5-338(a) and 32-5A-7(b)(3). If the jury determines that [the defendant], traveling at the speed it determines he was traveling, was acting with due regard for the safety of others, he will be entitled to the protection of that immunity and privilege. Given the genuine issues of material fact that exist in that regard, [the defendant] is not presently entitled to judgment as a matter of law. 936 So. 2d at 507. This instruction is consistent with the Courts more recent holding in Suttles v. Roy, cited above, where the Court reversed a Jefferson County trial court who left solely to the jury the question of immunity after denying summary judgment based on genuine disputes of fact. b. Williams and absolute immunity In Part B.1.-2. of his motion, Jimmy Williamss counsel restates an argument he already ably made earlier in the case through a Motion to Dismiss filed on October 19, 2011. The motion was denied by Judge Smith in his order of November 18, 2011. That order was appealed to the Alabama Supreme Court via mandamus, and the appeal was denied by the Supreme Courts order of August 10, 2012. (Exhibit A)
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As the Alabama Supreme Court has recently stated, We recently discussed the doctrine of the law of the case in Lyons v. Walker Regional Medical Center, Inc., 868 So. 2d 1071, 1077 (Ala. 2003): "'It is well established that on remand the issues decided by an appellate court become the "law of the case," and that the trial court must comply with the appellate court's mandate.' Gray v. Reynolds, 553 So. 2d 79, 81 (Ala. 1989). If, however, an observation by the appellate court concerning an issue is premised on a particular set of facts, and the nature of the remand is such that it is permissible and appropriate to consider additional facts relevant to the issue, the lawof-the-case doctrine is inapplicable. Quimby v. Memorial Parks, Inc., 835 So. 2d 134 (Ala. 2002); United States Fid. & Guar. Co. v. Baldwin County Home Builders Ass'n, 823 So. 2d 637 (Ala. 2001); Blumberg v. Touche Ross & Co., 514 So. 2d 922 (Ala. 1987); Gonzalez v. Blue Cross & Blue Shield of Alabama, 760 So. 2d 878 (Ala.Civ.App. 2000)." (Emphasis added.) "'Under the doctrine of the "law of the case," whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.' Blumberg v. Touche Ross & Co., 514 So. 2d 922, 924 (Ala. 1987). See also Titan Indem. Co. v. Riley, 679 So. 2d 701 (Ala. 1996). 'It is well established that on remand the issues decided by an appellate court become the "law of the case," and that the trial court must comply with the appellate court's mandate.' Gray v. Reynolds, 553 So. 2d 79, 81 (Ala. 1989)." Southern United Fire Ins. Co. v. Purma, 792 So. 2d 1092, 1094 (Ala. 2001). In the words of Justice Holmes, the doctrine of the law of the case "merely expresses the practice of courts generally to refuse to reopen what has been decided ." Messenger v. Anderson, 225 U.S. 436, 444, 56 L. Ed. 1152, 32 S. Ct. 739 (1912)(emphasis added). Bagley v. Creekside Motors, Inc., 913 So. 2d 441, 445 (Ala. 2005). Therefore, Williams is barred from attempting to re-litigate this issue.

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Further, and merely out of an abundance of caution, Spurlock incorporates by reference all of the arguments she made in her Plaintiffs Response to Defendant Williamss Motion to Dismiss, filed with this Court on November 10, 2011, and her Answer and Brief filed on appeal with the Alabama Supreme Court on January 26, 2012. (Exhibit B) c. The City and absolute immunity In Part C of its arguments, the City argues that it has no liability due to the combined effects of Ala. Code 6-5-338 and 11-47-190. The City's argument, in a nutshell, is that if Spurlock shows that the conduct of the Defendants who were the City's employees was willful, malicious, in bad faith, fraudulent, or beyond their authority, so as to satisfy one of the Cranman immunity exceptions, then the Defendant employees' conduct necessarily was worse than the "neglect, carelessness or unskillfulness" conduct for which the City's vicarious liability is limited by 11-47-190. The City tried and failed to sell that same argument to Judge Lynwood Smith in Scheuerman v. City of Huntsville, 499 F. Supp. 2d 1205, 1227-28 (N.D. Ala. 2007), aff'd, 276 Fed. Appx. 896 (11th Cir. 2008). That opinion denied summary judgment with respect to the plaintiff's state-law claims for assault, battery, unlawful detention and negligence against the City and its investigator, Weaber, who shot the plaintiff while Weaber was off duty, because Weaber's

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conduct was not immunized by the Cranman-Section 6-5-338 scheme. In that regard, Scheuerman found and held as follows: According to plaintiff, Weaber's decision to ignore well established policies and procedures prevents his unauthorized behavior from being cloaked under a mask of discretionary function immunity. If a jury believed plaintiff's version of the events, then Weaber would have violated the directives stated above, and discretionary function immunity would not apply. Thus, Weaber's motion for summary judgment on the basis of discretionary function immunity is due to be denied. 499 F. Supp. 2d at 1225-26. Scheuerman then disposed of the City's Section 11-47-190 alternative immunity argument, as follows: The City of Huntsville argues that even if plaintiff could prove that Weaber was not entitled to discretionary function immunity because he acted "willfully, maliciously, fraudulently, or in bad faith," he could not defeat the City's entitlement to discretionary function immunity through 11-47-190 of the Alabama Code, which limits municipal tort liability to claims based on "neglect, carelessness or unskillfulness" of its agents and employees. The language "willfully, maliciously, fraudulently, or in bad faith" comes from the Cranman restatement of State-agent immunity [ . . . ] [...] Cranman, 792 So. 2d at 405. The City's argument appears to be based on the premise that plaintiff's claims involving intentional torts cannot be based on "neglect, carelessness or unskillfulness." A line of cases from the Alabama Supreme Court lends support to the argument that a municipality is immune from intentional, wanton, or even reckless tort liability. See, e.g., Altmayer v. City of Daphne, 613 So. 2d 366, 369 (Ala. 1993); Hilliard v. City of Huntsville, 585 So. 2d 889, 892 (Ala. 1991). More recently, however, the Alabama Supreme Court has rejected this very argument in Borders v. City of Huntsville, 875 So. 2d 1168, 1183 (Ala. 2003), holding that a City is not immune from a plaintiff's claims of "excessive use of force, false arrest, false
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imprisonment, and assault and battery, all of which are based upon [an officer's] alleged neglect, carelessness, and unskillfulness." Id.; see also Franklin v. City of Huntsville, 670 So. 2d 848, 852 (Ala. 1995) (rejecting municipal immunity for claims of false arrest and imprisonment brought under 11-47-190 of the Alabama Code). In this case, plaintiff's complaint alleges as "Count Six - Negligence" that the "injuries suffered by Plaintiff Scheuerman made the subject of this complaint occurred due to the negligence, carelessness and/or unskillfulness of officer Weaber and the City of Huntsville while the officer was acting within the line and scope of his employment with the City of Huntsville, Alabama." In addition, plaintiff submits ample evidence of Weaber's carelessness and/or unskillfulness to defeat the City's motion for summary judgment on the basis of discretionaryfunction immunity and 11-47-190 of the Alabama Code. [...] In light of the foregoing, the City's motion for summary judgment on the state law claims based upon discretionary function immunity and 11-47-190 of the Alabama Code is due to be denied. 499 F. Supp. 2d at 1227-28. Scheuerman was cited and relied upon in Cornelius v. City of Andalusia, 2007 U.S. Dist. LEXIS 87304 (M.D. Ala. Nov 28, 2007), in which Judge Keith Watkins denied a motion to dismiss the plaintiff's state law claims that the city's police officers acted negligently when they seized and used excessive force in detaining him, finding and holding as follows: At this stage of the proceedings, Andalusia is not entitled to immunity under 11-47-190. Cornelius's complaint alleges that the police officers were negligent in their use of excessive force when they established a roadblock, stopped his car, pointed their guns at him, detained him for over an hour, and "conducted themselves in a manner below the standard of care inadvertently and with indifference." In
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Scheuerman, a municipality was not entitled to immunity when its officer shot an individual three times, showing that an officer's use of excessive force can be done through neglect, carelessness, or unskillfulness. See Scheuerman, 499 F. Supp. 2d at 1227-28. While Cornelius does not specifically state that the police officers acted with "neglect, carelessness, and unskillfulness," he claims that they acted "below the standard of care" with inadvertence and indifference, which sufficiently alleges that the police officers breached the standard of care. Accordingly, Cornelius's claims against Andalusia in this count, while inartfully stated, are not due to be dismissed. 2007 U.S. Dist. LEXIS 87304 at *10-11. Judges Lynwood Smith and Keith Watkins are not alone in their treatment of arguments similar or identical to those advanced by the City in this action. In Johnson v. City of Prichard, 771 F. Supp. 2d 1310 (S.D. Ala. 2011), Judge Callie Granade more recently observed: "Alabama case law has consistently granted municipal immunity under 11-47-190 only when the wrongful conduct involved an intent to break the law." Oladeinde v. City of Birmingham, 118 F. Supp.2d 1200, 1206 (N.D. Ala. 1999) (citing Ex parte City of Gadsden and Brent Brewer, 718 So. 2d 716 (Ala. 1998) (promissory fraud); Altmayer v. City of Daphne, 613 So.2d 366 (Ala. 1993) (willful and reckless misrepresentations and promissory fraud); Scott v. City of Mountain Brook, 602 So.2d 893 (Ala. 1992) (civil conspiracy and intentional interference with business relationship)). 771 F. Supp. 2d at 1316. The plaintiff's state claims in Johnson included a trespass claim based upon allegations that the defendant city's employees entered and demolished her house. Johnson said that, "[i]f the employees were mistaken in their belief that they had proper authority [to enter the plaintiff's property], then their trespass could have resulted from their neglect or carelessness." Id.
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In the Alabama Supreme Court's decision in Borders v. City of Huntsville that was cited and discussed in Scheuerman, the plaintiff, Borders, claimed the City was vicariously liable for the misconduct of its police officer employee, Earle, during an arrest; and the City invoked 11-47-190 immunity as to the "intentional tort" claims of Borders. Justice Lyons's opinion for the court rejected the City's arguments: In his complaint, Borders asserted a vicarious-liability claim against the City based upon his contention that Earle "knew or should have known" that Borders's detention, restraint, and imprisonment were unlawful. Although it is unclear from the complaint whether Borders actually asserts vicarious liability for an intentional tort against the City, he contends in his reply brief that his allegations are all based upon the "neglect, carelessness, or unskillfulness" of Earle. In Franklin [v. City of Huntsville, 670 So. 2d 848 (Ala. 1995)], supra, we stated in the context of claims for assault and battery, false imprisonment and false arrest, that "where a plaintiff alleges a factual pattern that demonstrates 'neglect, carelessness, or unskillfulness' the plaintiff has stated a cause of action under Ala. Code 1975, 11-47-190." 670 So. 2d at 852. Therefore, the City is not immune from liability pursuant to 11-47-190 for Borders's claims of excessive use of force, false arrest, false imprisonment, and assault and battery, all of which are based upon Earle's alleged neglect, carelessness, and unskillfulness. Borders stated claims upon which relief could be granted; therefore, the trial court improperly dismissed Borders's claims against the City that were based upon proof of negligence, i.e, Borders's claims of excessive use of force, false arrest, false imprisonment, and assault and battery. We reverse the trial court's dismissal with respect to the foregoing claims. 875 So. 2d at 1183-84. In the present action, Count Three of Spurlock's amended complaint includes these claims and allegations:
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9. Officers Williams, McElyea, Lucas and Anderson (and/or Fictitious Party Nos. 1 through 5), as agents, officers and/or employees of the City of Huntsville (and/or Fictitious Defendants 1-8) breached those duties and acted with neglect, carelessness and/or unskillfulness. 10. That neglect, carelessness and/or unskillfulness combined and concurred with the wrongful acts of the other defendants to proximately cause the death of Darren Spurlock. Thus, Spurlock's claims of neglect, carelessness and unskillfulness on the part of the Defendant City employees mirror those of the plaintiff in Scheuerman. And, as in Scheuerman, Mrs. Spurlock's ample evidence of the Defendant City employees' neglect, carelessness and unskillfulness, set out in previous portions of her brief, is sufficient under Alabama law to defeat the City's motion for summary judgment on the basis of discretionary-function immunity and 11-47-190. CONCLUSION No defendant in this case is entitled to absolute immunity. Spurlock has presented substantial evidence on breach and causation. If any decision on immunity is to be made as a matter of law, it should be a denial of summary judgment; however, the most proper course may be for the court to leave certain questions regarding immunity for a jury to decide before it makes its final decision on immunity. Therefore, at this stage, the defendants motions are due to be DENIED.

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Respectfully submitted this 1st day of April 2013, s//Rip Andrews Rip Andrews CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing on all counsel of record via the Alafile system. s//Rip Andrews Rip Andrews

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IN THE SUPREME COURT OF ALABAMA

August 10, 2012

1110386

Ex parte Jimmy Williams. PETITION F O R WRIT OF M A N D A M U S : CIVIL (In re: Kelly L. Spurlock, as Personal Representative of the Estate of Darren Spurlock, deceased v. The City of Huntsville, Alabama et al.) (Madison Circuit Court: CV-09-759).

ORDER

The petition for writ of mandamus in this cause is denied. MAIN, J . - Malone, C.J., and Woodall, Bolin, and Murdock, J J . , concur.
I, Robert G. Esdale, Sr., as Clerk of the Supreme Court of Alabama, do hereby certify that the foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s) of record in said Court. Witness my hand this 10th day of August, 2012.

Clerk, Supreme Court of Alabama

/ra

EXHIBIT A

EXHIBIT B