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Luckie v. City of Montgomery2/12/1999
e of all the definitions of probable cause is a reasonable ground for belief of guilt."' 'Probable cause to arrest is measured against an objective standard and, if the standard is met, it is unnecessary that the officer subjectively believe that he has a basis for the arrest.' The officer need not have enough evidence or information to support a conviction in order to have probable cause for arrest. Only a probability, not a prima facie showing, of criminal activity is the standard of probable cause."'" Couch, 708 So. 2d at 155-56 (quoting Hardeman v. State, 651 So. 2d 59, 67-68 (Ala. Crim. App. 1994) (quoting Dixon v. State, 588 So. 2d 903, 906 (Ala. 1991)).
Viewing the evidence in a light most favorable to Luckie, and considering the conflicting testimony of Griffin, we conclude that there is a question of fact as to whether Griffin had probable cause to arrest Luckie. Therefore, we conclude that there exists a genuine issue of material fact as to whether Griffin's arrest of Luckie was in bad faith or done with a malicious or a willful intent.
The City contends that it is immune from Luckie's claims for intentional, reckless, or wanton torts under § 11-47-190, Ala. Code 1975. That section provides as follows:
"No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line and scope of his duty, or unless said injury or wrong was done or suffered through the neglect, carelessness or failure to remedy some defect in the streets, alleys, public ways or buildings after the same had been called to the council or other governing body or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts or the negligence, carelessness or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured."
Our supreme court has held that § 11-47-190 immunizes municipalities from claims involving intentional acts, including malicious prosecution. Franklin v. City of Huntsville, 670 So. 2d 848 (Ala. 1995); Altmayer v. City of Daphne, 613 So. 2d 366 (Ala. 1993); Scott v. City of Mountain Brook, 602 So. 2d 893 (Ala. 1992). Accordingly, we conclude that the City is immune from Luckie's claim of malicious prosecution and the tort of outrage involving her first arrest. Our supreme court has also held that a municipality is not immune, under § 11-47-190, from claims of false arrest and false imprisonment. Franklin. Therefore, we conclude that the City is not immune from Luckie's claims of false arrest, false imprisonment, and assault and battery. Id.
Citing City of Mobile v. Sullivan, 667 So. 2d 122 (Ala. Civ. App. 1995), the City also asserts that it is entitled to "substantive immunity" from liability of any negligence on the part of Griffin; however, the City did not assert this defense before the trial court. "Our review is limited to the issues that were before the trial court-- an issue raised on appeal must have first been presented to and ruled on by the trial court." Norman v. Bozeman, 605 So. 2d 1210, 1214 (Ala. 1992) (citation omitted). Therefore, we make no determination as to whether the City is entitled to "substantive immunity."
Because we have concluded that genuine issues of material
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