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Ex parte City of Gadsden7/21/2000
The City of Gadsden ("the City"), a defendant in an action pending in the Etowah Circuit Court, petitions for a writ of mandamus directing that court to vacate its order of May 4, 1999, denying the City's motion for a summary judgment and to grant that motion. The sole issue presented by this petition is whether the City is entitled to immunity under § 6-5-338(b), Ala. Code 1975. Because we conclude that it is, we grant the petition.
At 2:20 a.m. on November 1, 1997, Margaret Denise Parker lost control of her vehicle on a residential street in Gadsden. Parker drove through the yard of Shirley McDonough, striking a chain-link fence and dragging it across the street into the yard of James Steward. Parker's vehicle finally came to rest in Steward's yard, but only after striking a second fence. Parker exited the vehicle and began walking toward her house, located a short distance from the accident scene. McDonough's son Gary informed Parker that he was telephoning the police on his cellular phone and then he began following her on foot.
Darrell Arnold was the first police officer to arrive on the scene. McDonough and Steward gave their accounts of what had happened and told Officer Arnold that a witness was following the driver of the vehicle. Fearing the potential for danger because "he had a witness chasing a drunk," and knowing that a second unit was en route, Officer Arnold left the scene in pursuit of the driver and the witness. As Officer Arnold was about to leave, Ms. McDonough informed him that a fence was stretched across the road; Officer Arnold testified that he told McDonough " on't go near it," and that he explained that another patrol unit was on its way to the scene. Steward testified that he asked Officer Arnold to leave his vehicle at the scene with the lights on, to protect the site. Officer Arnold later stated by deposition that he did not recall any such requests having been made.
Arnold left the scene; he located Parker while she was attempting to enter her residence. Parker was arrested and was charged with DUI and resisting arrest. Shortly after Officer Arnold had left the scene, Kandralyn Johnson drove down Winona Avenue and struck the fence that was stretched across the road; as a result of Johnson's striking the fence, McDonough became entangled in the fence and sustained injuries to her right foot and ankle. She sued the City and several other defendants. McDonough alleged in her complaint that Officer Arnold had negligently left the scene of an accident without properly securing the site and that his negligence was the proximate cause of her injuries. The City moved for a summary judgment, arguing that it was entitled to immunity and therefore could not be held liable on McDonough's claims. The trial court denied the motion for summary judgment. This petition followed.
It is well settled that the denial of a motion for summary judgment based on a claim of immunity is reviewable by petition for writ of mandamus:
"The writ of mandamus is an extraordinary remedy and one petitioning for it must show `(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991). See Ex parte Davis, 721 So. 2d 685, 689 (Ala. 1998), where this Court stated that ` petition for a writ of mandamus is the proper means for achieving appellate review of a trial court's denial of absolute and discretionary-function immunity.'" Ex parte Kelley, 739 So. 2d 1095, 1096 (Ala. 1999).
The City argues that § 6-5-338(
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