Sylvia Britt v. City of Hoover (Appeal from Jefferson Circuit Court: CV-22-903003).

Rel: May 16, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025

_________________________

SC-2024-0530
_________________________

Sylvia Britt

v.

City of Hoover

Appeal from Jefferson Circuit Court
(CV-22-903003)

MITCHELL, Justice.

AFFIRMED. NO OPINION.
SC-2024-0530

See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.

Stewart, C.J., and Wise, Sellers, and McCool, JJ., concur.

Mitchell, J., concurs specially, with opinion.

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MITCHELL, Justice, concurring specially.

I concur with the Court's decision to affirm the judgment, because

Rich v. City of Mobile, 410 So. 2d 385 (Ala. 1982), squarely applies. I

write separately to outline my view of how our Court should apply

Alabama's substantive-immunity doctrine going forward. I also write to

present my view of why we do not -- and should not -- overrule Rich.

In the case before us, Sylvia Britt, a resident of the City of Hoover

("the City"), sued the City. Britt suffered flooding on her property after

a heavy rainfall, and she alleges that the City is responsible, in part, for

the damage that occurred. She sued the City and others in the Jefferson

Circuit Court for declaratory and injunctive relief as well as damages.

But the trial court entered summary judgment for the City, determining

that the substantive-immunity doctrine bars Britt's claims against it. In

my view, the common-law doctrine of substantive immunity bars her

claims for declaratory and injunctive relief, while § 11-47-190, Ala. Code

1975 ("the immunity statute"), bars her claims for damages.

Facts and Procedural History

Britt lives in the Green Valley neighborhood of the City. Green

Valley lies just south of Patton Chapel Road, which Jefferson County and

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the Alabama Department of Transportation ("ALDOT") began widening

in 2020. The Patton Chapel project, which Jefferson County hired a

construction firm to oversee, was designed to expand the road from two

to three lanes and add sidewalks. Although the City had no operational

involvement in the project, it did contribute 10% of the funds to finance

it.

In early 2021, the City hired Schoel Engineering ("Schoel") to

investigate the City's drainage system. Schoel produced eight reports

covering different neighborhoods, and the City posted those reports on its

website in late June. The website clarified that "[t]he conducting of this

Study by the City of Hoover does not constitute an acceptance by the City

of any responsibility to repair nor does it infer, imply, or otherwise

establish any commitment by the City to repair the infrastructure

discussed herein and should not be construed as such."

One of Schoel's reports focused on Green Valley's drainage system.

That report determined that there is a 100-acre stormwater-drainage

area that begins around Patton Chapel Road to the north and flows south

to the bottom of the neighborhood, where Britt's house is located on

Paulette Drive. The drainage area terminates in Patton Creek to the

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south of Green Valley and runs under both private property and public

roadways.

According to Schoel's report, this drainage area was, as of June

2021, partially blocked by rocks, debris, and a damaged corrugated pipe.

The report suggested a number of improvements that could be made,

ranging from the minor removal of sediment in drainage channels to the

permanent installation of a new pipe. All of the report's suggestions

concerned potential improvements that could be made on private

property.

A few months after Schoel's reports were posted, a heavy rain

caused some flooding in Green Valley. Britt's house, along with those of

her neighbors, suffered damage, and a drainage pipe under Paulette

Drive collapsed. Green Valley flooded again the following spring, causing

further damage.

Britt, along with other homeowners in Green Valley, then sued the

City, Jefferson County, and ALDOT. The plaintiffs alleged that the

Patton Chapel project had replaced existing soil and vegetation with

nonabsorbent pavement and sidewalks. This, in turn, allegedly caused

excess stormwater runoff to drain into Green Valley, flooding the

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plaintiffs' homes. They further alleged that the City had negligently

maintained the drainage system and that, because the system was

insufficient for the excess runoff, it had contributed to the flooding. The

plaintiffs requested a judgment declaring that the City owed them a duty

to maintain the drainage system, an injunction directing the City to

maintain that system, and damages for negligence, wantonness, and

trespass.

In response, the City moved for summary judgment. In its motion,

the City argued that the plaintiffs' claims regarding improper drainage

management were barred by the doctrine of substantive immunity. The

City further argued that the plaintiffs' claims were barred by the

immunity statute.

After a hearing, the trial court granted the City's motion, holding

specifically that "the Plaintiffs' claims against the City of Hoover are

barred by the doctrine of substantive immunity." Britt timely appealed,

though her fellow plaintiffs did not. On appeal, she expressly asks us to

overrule Rich v. City of Mobile, 410 So. 2d 385 (Ala. 1982), as being

inconsistent with the immunity statute.

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Analysis

Britt has asked our Court to revisit the doctrine of substantive

immunity and to overrule Rich. But, in my view, the doctrine does not

conflict with the immunity statute and reflects well our common-law

traditions. As a result, I would decline to abolish it. With the doctrine of

substantive immunity in place, Britt's claims for injunctive and

declaratory relief fail. On the other hand, I believe that the immunity

statute, rather than the substantive-immunity doctrine, bars her claims

for damages.

A. The Substantive-Immunity Doctrine

Some form of municipal immunity has existed at common law since

at least the late 18th century. See Russell v. Men of Devon, 100 Eng.

Rep. 359 (1788); see also Jackson v. City of Florence, 294 Ala. 592, 594,

320 So. 2d 68, 69 (1975). And it has existed in Alabama since at least the

mid 19th century. See Dargan v. City of Mobile, 31 Ala. 469 (1858).

Throughout the latter half of that century, Alabama courts held that

municipalities enjoyed broad immunity in tort for core governmental

duties. See Jackson, 294 Ala. at 594, 320 So. 2d at 69. But courts found

that municipalities were not immune for "torts committed in the exercise

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of their … proprietary capacity" or for "negligent injuries arising out of

defects in the streets." Id.; see also Smoot v. City of Wetumpka, 24 Ala.

112 (1854).

It was against this common-law backdrop that the Legislature

adopted the immunity statute. That statute, first adopted in 1907,

provides that "[n]o city or town shall be liable for damages for injury done

to or wrong suffered by any person or corporation." § 11-47-190. But the

immunity statute does allow a municipality to be sued when (1) "such

injury or wrong" was a result of an employee's "neglect, carelessness, or

unskillfulness" while acting in the line of his duty or (2) the injury was a

result of the municipality's negligently failing to "remedy some defect in

the streets, alleys, public ways, or buildings" when the municipality had

notice thereof. Id.

The immunity statute does little to alter the traditional functioning

of tort law for damages claims that are allowed under the two exceptions.

Instead, it simply allows such claims to proceed as standard common-law

claims. And, because the statute says nothing about requests for

equitable relief or a declaratory judgment, it does nothing to undo the

courts' traditional role when hearing such requests.

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Part of the courts' traditional role when hearing a tort claim is to

determine the scope of the defendant's duties and to whom those duties

are owed. See DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So.

2d 454, 460 (Ala. 2008) (stressing that " ' "the existence of a duty is a

strictly legal question to be determined by the court" ' " (citations

omitted)). After all, for a plaintiff to successfully bring a claim in tort,

there must first be an underlying duty owed to the plaintiff. Macrum v.

Security Tr. & Sav. Co., 221 Ala. 419, 421, 129 So. 74, 76 (1930) (noting

that it is "axiomatic that there can be no tort action maintained except

against one who owned a duty fixed by law to the plaintiff").

Consequently, for a plaintiff to succeed in suing a municipality either for

equitable relief or when one of the immunity statute's exceptions apply,

a court must first determine if the municipality owed that plaintiff a

duty.

And that is the role our Court played when it announced the

substantive-immunity doctrine in Rich. In that case, the plaintiffs asked

this Court to hold that "the duty imposed upon the City … inspectors is

one which is owed, not to the public generally …, but to individual

homeowners." 410 So. 2d at 385. In response, this Court determined that

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public-policy considerations "prevent the imposition of a legal duty, the

breach of which imposes liability, in those narrow areas of governmental

activities essential to the well-being of the governed." Id. at 387

(emphasis added). This rule, the Court stressed, was "given operative

effect only in the context of those public service activities of governmental

entities … so laden with the public interest as to outweigh the incidental

duty to individual citizens." Id. at 387-88. Thus, Rich simply defined the

scope of a municipality's duties. In particular, our Court determined

that, when serving the general public, a municipality owes a duty to the

public as a whole and not to individuals.1

This doctrine is in line with common-law principles that, as

discussed above, date back at least two centuries. See, e.g., Mower v.

Inhabitants of Leicester, 9 Mass. 247 (1812). Our job, when acting in our

common-law capacity, is to reflect and apply those principles because

they have long suffused our legal culture. See Stephen E. Sachs, Finding

Law, 107 Cal. L. Rev. 527, 536-48 (2019). And we faithfully apply those

principles until they either change organically or the Legislature changes

1Recently, our Court clarified that this rule applies to cases
requesting equitable relief as well as damages. Ex parte City of Muscle
Shoals, 384 So. 3d 37 (Ala. 2023).
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them. Id. at 544-48; see also Stephen E. Sachs, Originalism as a Theory

of Legal Change, 38 Harv. J.L. & Pub. Pol'y 3, 817 (2015). Because the

Legislature, in enacting the immunity statute, preserved the traditional

functioning of tort law in suits for injunctive and declaratory relief, and

because there is no evidence that our legal principles have changed, I

would decline to upset the longstanding doctrine of substantive

immunity. See State v. Grant, 378 So. 3d 576, 581 (Ala. 2022) (stating

that " 'a statute which is an innovation on the common law will not be

extended further than is required by the letter of the statute' " (quoting

Pappas v. City of Eufaula, 282 Ala. 242, 244, 210 So. 2d 802, 804 (1968))).

In sum, the substantive-immunity doctrine is a common-law

doctrine of tort that applies in cases in which the immunity statute does

not: suits proceeding in equity or suits that fit into one of the two

statutory exceptions. Because the substantive-immunity doctrine and

the immunity statute have independent fields of operation and do not

conflict with each other, I agree with the Court's determination not to

overrule Rich or to abolish the doctrine. I now turn to discussing how I

believe that doctrine and the immunity statute apply to the claims at

issue in this appeal.

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B. Britt's Claims for Injunctive and Declaratory Relief

Because the immunity statute does not foreclose injunctive and

declaratory relief, I would analyze Britt's claims for such relief under the

substantive-immunity doctrine. See § 11-47-190; see also Rich, 410 So.

2d. at 387. As discussed above, that doctrine (1) prohibits the imposition

of a legal duty, (2) owed to the individual plaintiff, (3) on a municipality

(4) when it is engaged in core governmental duties "essential to the well-

being of the governed." Id.

Relevant here, our Court has held that substantive immunity

applies to a municipality's policy decisions concerning public services.

See, e.g., Ex parte City of Muscle Shoals, 384 So. 3d 37, 41-44 (Ala. 2023);

Hilliard v. City of Huntsville, 585 So. 2d 889 (Ala. 1991); Nichols v. Town

of Mount Vernon, 504 So. 2d 732 (Ala. 1987); Garrett v. City of Mobile,

481 So. 2d 376 (Ala. 1985); Calogrides v. City of Mobile, 475 So. 2d 560

(Ala. 1985). The Court of Civil Appeals has similarly held that

substantive immunity bars a municipality's liability for claims

challenging a policy decision or a decision relating to enacting,

interpreting, or enforcing a local law. See, e.g., Bill Salter Advertising,

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Inc. v. City of Atmore, 79 So. 3d 646 (Ala. Civ. App. 2010); Payne v. Shelby

Cnty. Comm'n, 12 So. 3d 81 (Ala. Civ. App. 2008).

In this appeal, Britt challenges the City's decision not to expand

and replace the pipes under Green Valley. Municipal decisions regarding

drainage systems and stormwater management are classic examples of

duties owed to the public at large and not to individual plaintiffs. City of

Muscle Shoals, 384 So. 3d at 41-44. Indeed, they are policy decisions

regarding the provision of a public service. See Hilliard, 585 So. 2d at

891-92. As a result, the doctrine of substantive immunity prevents the

imposition of a duty on the City that is owed to Britt individually. Her

claims for injunctive and declaratory relief are therefore barred as a

matter of law. As a result, the trial court correctly granted the City's

summary-judgment motion on these claims, and I agree that we should

affirm this aspect of its ruling.

In my view, this application of the substantive-immunity doctrine

to bar Britt's claims is limited. I believe that, in keeping with recent

precedent, there is no duty -- owed to individual plaintiffs -- to either

affirmatively expand a drainage system or to prevent flooding. See City

of Muscle Shoals, 384 So. 3d at 41-44. To hold otherwise would

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impermissibly transform the City's duty to the general public, which is

enforced through democratic politics, into a legal duty owed to

individuals, which is enforced by courts. It would also excessively burden

the City's "broa[d] requirement … to provide for the public health, safety,

and general welfare of its citizenry," thereby limiting its practical ability

to do so. Rich, 410 So. 2d at 387. And imposing such a duty here would,

in effect, turn the City into an insurer of last resort for flood damage on

private property.

I do not believe, however, that we need to disturb any precedent

that imposes a duty to individuals when a municipality either causes

flooding or negligently designs and constructs a drainage system.2 See,

e.g., City of Muscle Shoals, 384 So. 3d at 44 (discussing Kennedy v. City

of Montgomery, 423 So. 2d 187 (Ala. 1982)); Long v. Jefferson Cnty., 623

So. 2d 1130 (Ala. 1993); City of Mobile v. Jackson, 474 So. 2d 644 (Ala.

1985).

In conclusion, because I would not alter or abolish the doctrine of

substantive immunity, and because that doctrine applies here, I agree

2The City did not design or construct the drainage system at issue

here, which largely flows underneath private property.
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that we should decline to impose a legal duty on the City. I would thus

affirm the trial court's summary judgment on Britt's claims for injunctive

and declaratory relief.

C. Britt's Claims for Damages

I now turn to analyzing Britt's claims for damages. The

Legislature, as discussed above, has not altered the ordinary functioning

of tort law when a plaintiff seeks injunctive and declaratory relief. But

the Legislature has, through the immunity statute, altered the common

law in suits for damages. As a result, the statute, rather than the doctrine

of substantive immunity, governs the disposition of Britt's claims for

damages.

As discussed, the immunity statute bars recovery of damages from

a "city or town" unless the injury or wrong was either (1) caused by the

negligence of a city employee acting in his line of duty or (2) arose from

the City's neglect, upon notice, in remedying "some defect in the streets,

alleys, public ways, or buildings." § 11-47-190; see also Ex parte City of

Huntsville, 399 So. 3d 1020, 1026 (2024). Britt does not allege that the

damage to her property was caused by the negligence of a City employee

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acting in his line of duty. Thus, for her claims to succeed, they must fit

the second exception.

The second exception to the immunity statute is narrow. It applies

only to known defects in the "streets, alleys, public ways, or buildings." §

11-47-190. This language does not reasonably include defects in

subterranean drainage systems, parts of which run under private

property. Each word in this list refers to public passageways and

aboveground structures. And because we interpret words in light of their

associates, it would unduly strain the text to extend the exception to an

underground, partly private, drainage system. See Winner v. Marion

Cnty. Comm'n, 415 So. 2d 1061, 1064 (Ala. 2008); Ex parte Emerald

Mountain Expressway Bridge, L.L.C., 856 So. 2d 834, 842-43 (Ala. 2003).

After all, such a system, unlike a street, alley, or public way, is not for

traveling. Nor is such a system aboveground or available to some

segment of the public, as a street, alley, public way, or municipal building

would be. While we may determine that the exception fairly embraces

defects in a drainage system that are directly connected to a street, such

as a street-level drainage grate, I do not believe that the exception applies

here. See Ex parte City of Muscle Shoals, 257 So. 3d 850 (Ala. 2018).

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Because the City's challenged conduct does not fit into either of the

immunity statute's narrow exceptions, the City is immune from Britt's

claims for damages. I therefore agree that we should affirm the trial

court's summary judgment on those claims.

Conclusion

Because the common-law doctrine of substantive immunity is

firmly rooted in our legal tradition and does not conflict with the

immunity statute, we should not disturb it. And because this doctrine

bars the imposition of a legal duty to either (1) expand a drainage system

or (2) generally prevent flooding, I agree that we should affirm the trial

court's judgment on Britt's claims for injunctive and declaratory relief. I

also agree that we should affirm the trial court's judgment on Britt's

claims for damages, which I believe are barred by the immunity statute.

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