ZIEGLER v. CITY OF MILLBROOK, 514 So.2d 1275 (Ala. 1987)

"There is, indeed, a sense in which the duty of the City's employees, as inspectors, is a duty flowing to the individual homeowners. But to stop here and impose liability is to overlook what we perceive as overriding public policy reasons to hold to the contrary.

"These policy considerations may be expressed in terms of the broader requirement of the City to provide for the public health, safety, and general welfare of the citizenry. While, as here, the individual homeowner is affected by the discharge of the City sewer inspector's duty, the City's larger obligation to the whole of its resident population is paramount; and the imposition of liability upon the City, particularly where the Plaintiffs' reliance upon the public inspection is secondary and inferential to their reliance upon the building contractor, necessarily threatens the benefits of such services to the public-at-large.

"A municipality, in contrast to the State, which has immunity under Ala. Const. 1901, § 14, is generally chargeable with the negligence of its employees acting within the line and scope of their employment. InJackson v. City ofFlorence,294 Ala. 592,320 So.2d 68(1975), we interpreted §11-47-190, Code 1975, as so mandating.We believe these public policyconsiderations, however, override the generalrule and prevent the imposition of a legal duty,the breach of which imposes liability, in thosenarrow areas of governmental activities essentialto the well-being of the governed, where theimposition of liability can be reasonablycalculated to materially thwart the City'slegitimate efforts to provide such publicservices.

"We readily acknowledge both the difficultyand the risk of error of any attempt toarticulate the rule with that degree ofdefiniteness which is easily applicable tovarying factual situations. But this phenomenonis no stranger to the Rule of Law generally. Webelieve the wiser course is to allow the rule toevolve through the judicial process of trial andreview on a case by case basis.

"We emphasize, however, that only the narrowest of constructions of our instant holding will avoid violence to §11-47-190and itsJacksoninterpretation;and that thesubstantive immunity rule of this case must begiven operative effect only in the context ofthose public service activities of governmentalentities(not to be confused with the pre-Jacksondistinction between governmental and proprietary functions)soladen with the public interest as to outweigh theincidental duty to individual citizens.Cf.DeStafney v. University of Alabama,409 So.2d 1347[Republished at413 So.2d 391] (Ala. 1982). For two recent pronouncements of this Court that further illustrate the circumscription of the rule, see, also,City of Birmingham v.Thompson,404 So.2d 589(Ala. 1981) (allowing a claim for assault and battery);Page 1278andNeighbors v. City of Birmingham,384 So.2d 113(Ala. 1980) (rejecting a claim for malicious prosecution).

"Cognizant of theRestatement's[Restatement (Second) of Torts]review of the historical development of municipal immunity, and the modern trend of the common law to liberalize its exceptions (Comment, § 895C), which we accept generally, we nonetheless reject theRestatement's approval of a claim against the City under the facts of the instant case." (Emphasis added; footnote omitted.)

"The issue for decision is whether the City of Tuscumbia is liable for its firemen not responding immediately to a call from a citizen telling them that his house is on fire.

"Tuscumbia contends that there is no legislative duty imposed upon a municipality to maintain a fire department. That is true. Section11-43-140, Code 1975, provides that:

" 'Cities and towns may maintain and operate a volunteer or paid fire department and may do all things necessary to secure efficient service. . . .'

"The flip side proposes this question. Once a city or town organizes and provides for a fire department, what is the duty owed to the citizens of the city or town? Tuscumbia contends that a duty imposed upon a municipal fire department is owed to the general public — not to an individual. Does this mean that the whole town has to be on fire before the fire department responds to a call? It may be true that a certain fire in the city would have priority over another fire. For example, if a multi-story building was on fire and in it a number of people were stranded and about to suffer imminent death from the fire, it could hardly be questioned that the fire inside the multi-story building would have priority over a fire in a dwelling where only property damage would be suffered.

"We opine that in this case a duty was imposed on the Tuscumbia Fire Department to respond immediately to the call that the Williams house was on fire. There was a special duty created to act in a skillful manner to respond to the call. We recognize the fact that firemen may act with extreme skillfulness and yet be unable to get to a fire to prevent a building from burning to the ground. But, here the complaint alleges that the reason the fire department did not immediately respond was that the driver of the truck had gone home sick and had not been replaced. We opine that the fire department acted unskillfully by not having a back-up driver who could have immediately taken the place of the sick driver, §11-47-190, Code 1975. In other words, the fire department lacked proficiency. Cf.Cityof Birmingham v. Thompson,404 So.2d 589(Ala. 1981).

"Finally, Tuscumbia contends that the abrogation of immunity byJackson v. City ofFlorence,294 Ala. 592,320 So.2d 68(1975), did not relieve the courts from further examination of the issue of liability. No one can argue with that contention. BeforeJacksonthe liability question was never presented for decision (except in a proprietary action), because the municipality was shielded by the doctrine of immunity. The municipality's immunity having been abrogated by §11-47-190as interpreted byJackson, the liability question is precisely the question in this case.

"We hold that the complaint stated a cause of action. The cause is returned to the trial court to determine whether the failure of the fire department to immediately respond to the call that there was a fire at the Williams residence was the proximate cause of the house being destroyed."

"I write to express my view that the same public policy considerations that the Court found applicable inRich v. City of Mobile,410 So.2d 385(Ala. 1982), are even more compelling in the present case. It is my opinion that this is indeed one of those

" 'narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services.'

410 So.2d at 387. The fact that a municipality is under no obligation to provide a fire department in order to protect the property of its residents tends to increase the probability that the imposition of tort liability would diminish a City's motivation or ability to support this essential service."

"Next, the city citesRich v. City ofMobile,410 So.2d 385(Ala. 1982), to support its proposition that it is substantively immune from suit in this case. InRich, homeowners sued the city, alleging that a building inspector negligently inspected, or negligently failed to inspect, sewer lines connecting plaintiffs' residence to the main system.Richcreated a narrow exception to the rule of general liability for municipalities in situations in which the public policy considerations of a city's paramount responsibility to provide for the public safety, health, and general welfare outweighed the reasons for the imposition of liability on the municipality. This exception to the general rule of liability, however, is to be applied only in 'those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services.'Rich, 410 So.2d at 387.

"We find thatRichis not applicable to the case at hand.

"InKennedy v. City of Montgomery,423 So.2d 187(Ala. 1982), this Court held that pursuant to Code 1975, §11-50-50, municipalities are authorized to construct and maintain drainage systems, and, while a municipality is not required to exercise this authority, once it does so, a duty of care arises and a municipality may be liable for damages proximately caused by its negligence.

"We find that the liability for negligent design or maintenance of drainage systems is analogous to that involved in the construction and maintenance of streets, alleys, or public ways or buildings, and, thus, that the city is not immune in this case."

"InRich v. City of Mobile,410 So.2d 385,387(Ala. 1982), the Court held that public policy considerations prevent the imposition of a duty on a city, the breachPage 1280of which would impose tort liability to a person 'in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart the City's legitimate efforts to provide such public services.' The opinion acknowledged the lack of clarity of the rule there expressed, reserving for a later day the development of the rule, characterized as the substantive immunity rule.Whatever its perimeters, the rule recognizesthat a city's obligation to provide for thepublic health, safety, and general welfare of itscitizens is paramount and that the imposition ofliability to particular individuals in certaincircumstances would necessarily threaten thebenefits of certain services to the public atlarge. We hold that this is such a case.

"Other jurisdictions have held that a municipality is not liable for this failure to provide police protection.See: Wuethrich v.Delia,155 N.J. Super. 324,326,382 A.2d 929,930(1978), holding that 'a public entity such as a municipality is not liable in tort for its failure to protect against the criminal propensity of third persons';Motyka v. Cityof Amsterdam,15 N.Y.2d 134,138,256 N.Y.S.2d 595,596,204 N.E.2d 635,636(1965), stating, 'The rule is that, independent of sovereign immunity, a municipality is not liable for failure to supply general police . . . protection [to the public].' See also 18 McQuillin,The Law of MunicipalCorporations§ 53.51 (3d ed. 1984), stating, '[T]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city.' " (Emphasis added.)