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IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

KELLY L. SPURLOCK, as personal )

representative of Darren Spurlock, )deceased, )

)

Plaintiff  )  CV-2009-000759

)

v. )

)

CITY OF HUNTSVILLE, et al., )

)

Defendant  ) 

SPURLOCK’S 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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ELECTRONICALLY FILED4/1/2013 4:34 PM

47-CV-2009-000759.00CIRCUIT COURT OF

MADISON COUNTY, ALABAMJANE C. SMITH, CLERK

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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 fair-

minded persons in the exercise of impartial judgment can reasonably infer the

existence of the fact sought to be proved.” West v. Founder’s 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 Spurlock’s 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 state-

agent 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 isentitled 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 State-

agent 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-agentimmunity is ultimately a question of law to be determined by the court.

2010 Ala. LEXIS at Part III (emphasis added).

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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)

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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 “it’s 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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1 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)

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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, Spurlock’s 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)

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2 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)

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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

Spurlock’s 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 par ty 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 plaintiff’s complaint in a high-speed chase case in which the

 plaintiff’s 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 decedant’s 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 Court’s rationale in Seals II , which includes the Court’s explanation of how to

reconcile the cases and the Court’s 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. Theadministrator 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 off icers exceeded the speedlimit 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 recklessdriving 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 tostate 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 oncethe 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[] [Gooden’s] case, however, is distinguishable from Seals. In Seals, a

genuine issue of material fact existed as to whether the pursuing officer hadviolated 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 City’s 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 court’s

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 Coxwas 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 wouldhappen.

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 ahundred 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 providethe 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 isyes. 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 andused 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 behindyou, 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 Spurlock’s life. Even if they had simply stopped at the

gates of Redstone Arsenal, the research -- along with Ms. Cox’s 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, Spurlock’s 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

court’s 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

defendant’s 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 Drakeof 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 trafficthere. 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 wasno 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 safespeed 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 defendant’s] 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 defendant’s] 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 Court’s 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 Williams’s 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 Court’s 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 anappellate 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 law-

of-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 “Plaintiff’s Response to

Defendant Williams’s 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 immunitythrough § 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 casesfrom 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 andimprisonment 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 discretionary-

function 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 immunityunder § 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. WhileCornelius 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 againstthe 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 immunefrom 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 FOR WRIT OF MANDAMUS: 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).

The petition for writ of mandamus in this cause is denied.

MAIN, J. - Malone, C.J. , and Woodall, Bolin, and Murdock, JJ . , 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.

ORDER

Clerk, Supreme Court of Alabama

 /ra EXHIBIT A

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