Ex parte City of Muscle Shoals PETITION FOR WRIT OF MANDAMUS (In re: Reginna Burrell v. City of Muscle Shoals)(Colbert Circuit Court: CV-20-900062).

Rel: March 28, 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,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025
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Ex parte City of Muscle Shoals

PETITION FOR WRIT OF MANDAMUS

(In re: Reginna Burrell et al.

v.

City of Muscle Shoals)

(Colbert Circuit Court: CV-20-900062)

BRYAN, Justice.

The City of Muscle Shoals ("the City") seeks a writ of mandamus

directing the Colbert Circuit Court ("the trial court") to enter a summary
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judgment in its favor on claims asserted against it by several residents of

the City. The plaintiffs seek damages on claims of negligence and

trespass arising from the City's management of a stormwater-drainage

pond in their neighborhood. We grant the petition and issue the writ.

Background

The plaintiffs in this case include Jennifer Cross and Jason Cross;

Dana Fisher; Brady Gregory and Amber Gregory; Brett King and

Amanda King; Tammy Michael and Charles Michael; Dustin Parker;

Carolyn Pate; Jamie Reed; Mary Rowe and Jimmie Rowe; and Miller

Terry and Sonya Terry.1 We will refer to those individuals collectively as

"the plaintiffs." All the plaintiffs live in a neighborhood in which the City

owns and manages a pond as part of its stormwater-drainage system.

Heavy rainfall occurred in February 2019, which overwhelmed the pond

and flooded the plaintiffs' houses.

1Not all the original plaintiffs below joined the answer and brief

filed in response to the City's mandamus petition. The appendices to the
City's petition do not show why those parties have not participated in this
mandamus proceeding. The plaintiffs listed here are those who have
joined the answer and brief filed in response to the City's petition. All of
them were named in the original complaint.
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Procedural History

The plaintiffs filed their complaint against the City on March 6,

2020. They sought damages based on claims of negligence, wantonness,

and trespass. The City answered the complaint and asserted that the

plaintiffs' claims were barred by § 11-47-190, Ala. Code 1975.

The plaintiffs amended their complaint in November 2021. In that

filing, the plaintiffs abandoned their wantonness claim and added a

request for injunctive relief. Specifically, they asked the trial court to

order the City to enact a stormwater-management plan and to comply

with the City's drainage manual for the benefit of other City residents

and to prevent future flooding to their properties. The City moved to

dismiss the plaintiffs' claim for injunctive relief on the ground that it was

barred by substantive immunity. The trial court denied the City's

motion.

The City petitioned this Court for a writ of mandamus in April

2022. In March 2023, this Court granted the petition on the ground that

substantive immunity barred the plaintiffs from obtaining a judgment

directing the City to enact and enforce particular policies. See Ex parte

City of Muscle Shoals, 384 So. 3d 37 (Ala. 2023). This Court thus issued

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a writ directing the trial court to dismiss the plaintiffs' demand for

injunctive relief. Id. at 45. The trial court did so in April 2023.

Thereafter, the City answered the amended complaint, once again

asserting that the plaintiffs' claims were barred by § 11-47-190. The City

also added a defense that the plaintiffs' claims were barred by

substantive immunity. In July 2024, the City moved for a summary

judgment on the plaintiffs' claims for damages. The City argued that the

claims were barred by § 11-47-190 and that there was not substantial

evidence to support the trespass claim. The plaintiffs responded, and, in

its reply brief, the City added an argument that substantive immunity

barred the plaintiffs from recovering on the ground that the City had

failed to comply with its drainage manual.

The trial court denied the City's motion on August 13, 2024. It did

not state its reasons for the ruling. The City then filed its mandamus

petition with this Court. We ordered an answer and briefs.

Summary-Judgment Evidence

The evidence presented to the trial court showed the following. The

City is in a region with complicated hydrology and topography, which

makes it susceptible to flooding. In 2019, the plaintiffs all owned houses

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in a neighborhood in the City known as Nathan Estates. A drainage pond

in the neighborhood exists at a natural low point. The pond receives

water from an area of approximately 0.6 square miles, or more than 300

acres.

In 2019, the Nathan Estates pond had no pump. There is no

natural tributary or other body of water within the City limits to which

water from the Nathan Estates pond can be diverted. Most ponds in the

City's stormwater-drainage system that have pumps divert water into

the Tennessee Valley Authority reservation or into creeks that drain into

the Tennessee River. The Nathan Estates pond has no access to either

of those bodies of water.

There is conflicting evidence about whether the Nathan Estates

pond was designed as a detention pond or as a retention pond. The City

engineer explained that a detention pond is designed to hold water

temporarily and to slowly release it into pipes or streams, allowing it to

drain in a controlled manner to prevent flooding downstream. Detention

ponds typically empty within 24 to 48 hours. A retention pond, however,

provides storage for stormwater without a positive outlet. A positive

outlet exists when water has access to a pipe or stream without having

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to travel uphill. The only outlet for water in a retention pond is

evaporation into the air or infiltration into the surrounding soil.

Retention ponds typically have permanent or semi-permanent pools.

The City engineer stated that, because no stream or pipes tie into

the Nathan Estates pond, it is a retention pond and not a detention pond.

The mayor and the civil engineer who consulted with the City agreed that

the Nathan Estates pond is a retention pond because it has no outlet

through which water can flow out of the pond.

However, the plaintiffs' expert witness stated that the Nathan

Estates pond is a detention pond because it was meant to dry up and was

not designed to hold water permanently for fishing or similar purposes.

He did not distinguish detention ponds from retention ponds on the basis

of whether an outlet existed, but solely on whether the pond was intended

to permanently hold water. In his opinion, all ponds in a drainage system

should have an outlet structure.

Before 2005, the Nathan Estates pond had been privately owned

and maintained by the neighborhood's developer. The developer first

asked the City to assume ownership and maintenance of the pond in

2001. In 2003 or 2004, the pond flooded into surrounding roads. Because

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water dissipated very slowly from the pond, that flooding prevented

residents from using the roads for days. The City engineer testified that,

in 2005, the City thus purchased and designed improvements to the pond

to prevent such road blockages from happening regularly in 10- or 25-

year rainfall events.

The industry standard for drainage design and stormwater

mitigation is to use 24-hour rainfall probabilities. In hydrology, the

phrasing of a "100-year rainfall event" means that, statistically, there is

a 1% probability of having a 24-hour rainfall event of that magnitude in

any year. It does not mean that rainfall of that magnitude happens only

once every 100 years. The Federal Emergency Management Agency

("FEMA") sets the industry standard for flood-risk definitions. Working

with civil engineers and using historical data, FEMA creates maps to

determine whether and at what probability a particular area is likely to

experience flooding. FEMA uses the 1%, or 100-year rainfall event,

probability to determine whether a particular house is required to have

flood insurance. For areas outside that level of risk, flood insurance may

be recommended because of repeat flooding, but it is not required. In

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2019, the plaintiffs' houses were not in a FEMA-designated area

requiring them to buy flood insurance.

The City uses information from FEMA's mapping as part of its

design and planning for stormwater management. The plaintiffs' expert

testified that municipal requirements for residential flood control vary

greatly by region. Typically, most municipalities require control of 2- to

25-year events, which are statistically more likely to occur. He testified

that, at all times relevant to this case, the City required mitigation

measures capable of dealing with 25-year rainfall events for residential

neighborhoods. Most ponds within the City's drainage system are

designed to contain 25- to 50-year rainfall events and would not contain

100-year rainfall events.

The improvements the City designed for the Nathan Estates pond

in 2005 were intended to prevent future flooding of the roads in a 25-year

rainfall event. The improvements were not designed specifically to

protect the plaintiffs' houses from larger, 100-year rainfall events. The

City did not perform studies or attempt to determine whether the 2005

improvements would be enough to protect the houses in the

neighborhood.

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In early 2005, the City had a geotechnical report prepared in

anticipation of the City's takeover of the Nathan Estates pond. That

report found that the area around the pond has clay soils, which do not

drain quickly. Thus, the area had poor potential for natural percolation

in the soils beneath the pond. It acted more like a retention pond than a

detention pond. Moreover, the underlying groundwater elevation was

near the bottom of the pond. Thus, increasing the depth of the pond

would have only a limited benefit.

The mayor testified that the City spent approximately $500,000 to

expand the pond to double its capacity and to add a spillway on the

western side. The City engineer testified that the 2005 improvements

that the City designed and implemented were intended to increase the

storage capacity of the pond as much as possible within the acreage

available. The spillway added did not allow water to leave the 300-acre

area that drained into the pond. It did allow water to spill from the pond

into a broader area. The intent was to give stormwater as much area as

possible laterally to keep it from getting deeper.

The improvements were completed in January or February of 2006.

The civil engineer who consulted with the City believed that the pond

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worked as designed. The improvements were sufficient to handle many

rainfall events between 2005 and 2019 and prevented flooding from

rendering the surrounding roads impassable.

The plaintiffs' expert witness agreed that the improvements had

been constructed in accordance with the City's plans. However, he

believed that the spillway was ineffective because water would

ultimately return to the pond. After the improvements were made,

unless the City brought a portable pump to the pond, water still could

leave only by evaporation or infiltration. Thus, there was still no outlet

for water to flow out of the pond's broader drainage area. The plaintiffs'

expert witness did not have an opinion about how that could be

accomplished at the Nathan Estates pond, but he stated that the City

"could do something and there was no plan."

The City performed regular maintenance on the pond after its

improvements were completed. This included treating the water,

providing mosquito control, mowing the surrounding grass and brush,

and other services. The City did not make further improvements to the

pond between 2006 and 2019. The City had no plan in place before the

2019 flood for how to divert water away from the Nathan Estates pond

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other than through infiltration, evaporation, or the spillway. The

plaintiffs' expert witness did not offer an opinion on whether the City had

appropriately monitored the Nathan Estates pond. He did not know

what the City's maintenance plan for the pond was or whether the pond

was appropriately maintained.

The parties dispute whether the City had notice of any defective

condition of the pond after it completed its improvements. The plaintiffs

presented the following evidence to show notice and the existence of a

defect. Between 2006 and 2019, the pond never emptied. August 2006

and September 2006 City council records show discussions about the

volume of water in the Nathan Estates pond. The City clerk recalled that

the City council discussed residents' concerns that the pond seldom dried

up. He remembered that the idea of adding a pump had been considered

but was determined not to be a viable solution because there was no

feasible option for where to divert the water. The pond is approximately

2,000 feet and over a hill from the nearest low area, known as Gum

Bottom. Moreover, Nathan Estates did not have access to industrial-

level power sources necessary to run pumps needed to divert water to

Gum Bottom.

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Plaintiff Amanda King recalled that the pond overflowed into the

roads in 2005 or 2006, after the City had completed its improvements.

She could not get to work because of the flooding and had contacted the

mayor. She later admitted that she did not remember whether the

flooding happened before or after the City's improvements. Her

interrogatory responses state that she believed that the flooding occurred

in 2005. Between 2005 and 2019, she recalled the pond overflowing into

woods nearby, but not over the roads. She never discussed the Nathan

Estates pond with any City official or employee between 2005 and 2019.

Her husband, plaintiff Brett King, testified that the flooding to their yard

happened in early 2005. He never saw the pond overflow any other time

between 2005 and 2019.

Plaintiff Tammy Michael testified that there was flooding to her

basement while it was under construction in late 2004 or early 2005. She

believed that the flooding was associated with rainfall from Hurricane

Katrina. However, Hurricane Katrina occurred in August 2005. She

recalled that water in the pond exceeded its banks multiple times

between 2005 and 2019. Water would get into the road, but the road was

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still passable by car. Before 2019, she had no conversations with any

City official or employee about the Nathan Estates pond.

Plaintiff Jamie Reed testified that he saw water from the pond

overflow into the streets two or three times between 2008 and 2019. He

did not complain to the City about the pond before 2019.

Plaintiff Charles Michael testified about problems with a drainage

ditch, which would cause water to back up into his yard. He would

contact the City, and officials would send someone to unclog the drain

and resolve the problem. He never had conversations with anyone with

the City about the Nathan Estates pond before 2019.

The plaintiffs' primary complaint seems to be that the City had no

plan in place to pump water out of the Nathan Estates pond to prevent

flooding to their houses in large rainfall events. Indeed, the City engineer

was unaware of any plan by the City to begin pumping water out of the

pond if it ever reached a certain level. The mayor agreed that, before the

flooding began in 2019, the City did not have a plan in place to pump

water from the Nathan Estates pond onto other landowners' property.

The City received heavy rainfall during four days in late February

2019, particularly on Friday, February 22, and Saturday, February 23.

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Areas within the City received between 12 and 16 inches of rain. The

parties presented conflicting evidence about the statistical probabilities

of the event. The City engineer did not know if rainfall during any 1 day

exceeded a 100-year rainfall event. He estimated that the combined 4

days were between a 100- to 300-year rainfall event. The civil engineer

who consulted with the City stated that the event exceeded the 1%, or

100-year rainfall event, probability. He stated that the event lasted

longer than the 24-hour standard used for design and that design

probabilities are not used to measure actual events.

Using the 24-hour-design probability standard, the plaintiffs point

to the City's drainage manual, which incorporates certain statistical

probabilities for planning purposes for new construction. According to

those probabilities, the plaintiffs say, the February 2019 rainfall over

specific 24-hour periods did not exceed a 25-year rainfall event. The State

climatologist who testified for the plaintiffs estimated that the event was

a 30-year to a 40-year rainfall event. Nonetheless, he determined that it

was the fourth largest on record for a four-day rainfall event for the area

and the third largest on record for a five-day rainfall event.

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Regardless of the statistical probabilities, it is undisputed that the

event created an emergency for the region. The area had experienced

significant rainfall during the preceding weeks. Those rains saturated

soils in the area, pushed groundwater tables up, and decreased the ability

of further rainfall to infiltrate soils. Moreover, the City ultimately

received more rain in late February than the county emergency-

management agency had predicted. The storms thus resulted in flooding

to multiple parts of the City's drainage system. Roads were closed in

places all over the City. State emergency-management officials sent

recovery teams to the area and worked with officials in surrounding

counties to manage government responses. The governor and other

agencies issued emergency declarations for several counties. The City

worked with the Red Cross to set up facilities nearby to help local

residents.

The day before the rains began, City officials examined the Nathan

Estates pond to confirm that it had more storage capacity. It did.

However, on Thursday morning, the pond overflowed into nearby roads,

which were carrying school traffic. City officials then ordered pumps and

began looking for places to divert water from the pond. City officials were

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unable to get immediate permission from an adjacent landowner to the

south to pump water onto his land. They were able to obtain permission

from a landowner over a hill, further away and to the east toward Gum

Bottom. To divert the water to Gum Bottom, the City had to order and

lay more than 1,800 feet of pipe over a road and across at least 2

residents' properties. The pipe was necessary to carry the water over a

hill to a point where gravity would carry it to the lower elevation where

the City had permission to direct the water.

As rains continued the next day, two extra pumps were set up at

the Nathan Estates pond. With those pumps, City officials were able to

keep the water level under control until the early morning hours of

Saturday, February 23, 2019. At that time, the rains became so heavy

that the area experienced additional flash flooding. The pumps had to be

stopped and moved back to keep them from being submerged. Shortly

afterward, the mayor called in fire and police departments to begin

evacuation of nearby houses. The area received even more rain over the

next two days. With pumping, the City was able to reduce the water level

approximately six inches per day; thus, it took several days to remove

water from the nearby roads.

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After the 2019 flood, the City worked with a civil-engineering firm

engaged in mapping flood zones for FEMA to analyze the event and to

make recommendations for how to prevent future flooding. The resulting

report noted that the "February 2019 event, and its similar follow-up in

2020, is not a typical storm that would be considered when drafting

protection levels from flood risk." It also stated that the "event does

highlight a need for more thoughtful protection measures across karst

regions. Also, regardless of the intended protection and any future

planning, a need exists to keep those already living in this community

safe from future flood risk." The report concluded that tripling the pump

capacity of the Nathan Estates pond would alleviate flooding problems to

residents during 100-year and 150-year rainfall events. The report also

suggested that a "proactive drawdown" of water in the pond would help

reduce the severity of the impact of larger events.

The City hired the firm to perform a feasibility study as a

supplement to that report. The study examined multiple locations to

determine where water from the Nathan Estates pond could be diverted.

The study was stopped after a few months, however, when each option

examined was determined to be cost-prohibitive or to involve annexation

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problems. The study was to be resumed if the City was able to obtain

federal grants to fund a project to divert water to another location.

The City ultimately obtained an easement from the landowner near

Gum Bottom to pump water from the Nathan Estates pond in

emergencies. The City installed a permanent force main and purchased

a portable pump to give it the ability to hold water at a lower elevation.

The City engineer did not know if the pump had been permanently

installed. There is no indication in the record regarding whether the City

tripled the pump capacity, as suggested by its consultant's report. There

is also no indication in the record regarding whether Nathan Estates

obtained industrial-level power necessary to run larger pumps. The City

engineer thought that whether the City could increase the pump capacity

in that way without exposing the City to suit from residents downstream

would be a legal question. Even with installation of the force main and

portable pump, the City engineer believed that the Nathan Estates pond

remains a retention pond rather than a detention pond because the water

must travel uphill before it can flow to other areas.

The City's engineering consultant testified that the City could have

reduced damage to the plaintiffs' houses by pumping more water out, but

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he did not know if the City could have prevented the flooding entirely.

Nor did he offer testimony about the feasibility of pumping during the

2019 flood.

The plaintiffs' expert witness ultimately concluded that the City's

post-2019 efforts at the Nathan Estates pond had been good, but he

believed that they should have been done sooner. In his opinion, because

the City had notice that the soil beneath the pond had poor drainage

quality, the City should have planned for an alternate means of diverting

water out of the pond in the event of back-to-back storms or intense rain.

His report acknowledged that he did not review any comprehensive plan

for stormwater drainage for the area and, thus, did not see how this or

surrounding sites should be designed or where water from the pond

might be taken.

The parties focus much of their arguments on whether the plaintiffs

may use the City's 2011 drainage manual at trial. The City argues that

use of the manual is barred by substantive immunity. Neither side relies

on the manual to support their arguments about municipal immunity

under § 11-47-190. The manual is of questionable relevance. It was

prepared and adopted in 2011 and applied to new development or

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improvement projects. Thus, it did not apply to the Nathan Estates pond

as originally constructed or to the City's 2005 improvements.

Nonetheless, the manual's design standards for detention ponds require

that they "attenuate the post development peak flow rates from the 2-

year, 5-year, 10-year and 25-year NRCS 24-hour design storms to

discharge at or below predevelopment peak flow rates." The manual's

design standard for retention ponds states:

"A retention basin should be sized so that the volume of
the excavated material from the pond is equal to the
difference between the pre-development and post-
development runoff volume from the development. The
volume calculation should be based on a 25[-]year 24[-]hour
rainfall event. A 100[-]year 24[-]hour rainfall event should
also be analyzed to ensure that no structures or roadways will
be inundated."

Standard of Review

"A writ of mandamus is an extraordinary remedy, and it
will be 'issued only when there is: 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 United Serv. Stations, Inc.,
628 So. 2d 501, 503 (Ala. 1993)."

Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894 (Ala. 1998).

Moreover,

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"[i]n reviewing a trial court's ruling on a motion for a
summary judgment, we apply the same standard the trial
court applied initially in granting or denying the motion. Ex
parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999).

" 'The principles of law applicable to a motion
for summary judgment are well settled. To grant
such a motion, the trial court must determine that
the evidence does not create a genuine issue of
material fact and that the movant is entitled to
judgment as a matter of law. Rule 56(c)(3), Ala. R.
Civ. P. When the movant makes a prima facie
showing that those two conditions are satisfied,
the burden shifts to the nonmovant to present
"substantial evidence" creating a genuine issue of
material fact.'

"742 So. 2d at 184. '[S]ubstantial 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. Founders Life Assurance
Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)."

Swan v. City of Hueytown, 920 So. 2d 1075, 1077-78 (Ala. 2005). See Ex

parte Price, 256 So. 3d 1184, 1186-87 (Ala. 2018). These standards apply

in cases involving municipal immunity. See Ex parte City of Muscle

Shoals, 257 So. 3d 850, 854-56 (Ala. 2018).

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Analysis

The plaintiffs' pending claims against the City seek damages based

on negligence and trespass. The City argues that, under § 11-47-190, it

is immune from suit on those claims. That section provides:

"No city or town shall be liable for damages for injury
done to or wrong suffered by any person or corporation, unless
such 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 of his or her duty, or unless the said
injury or wrong was done or suffered through the neglect or
carelessness or failure to remedy some defect in the streets,
alleys, public ways, or buildings after the same had been
called to the attention of the council or other governing body
or after the same had existed for such an 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 for damages
by reason of the unauthorized or wrongful acts or 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."

In Ex parte City of Huntsville, 399 So. 3d 1020, 1026 (Ala. 2024),

we recently stated:

"This Court explained in Ex parte City of Muscle
Shoals[, 257 So. 3d 850 (Ala. 2018),] that this statute has long
been held to limit municipal liability to two situations. 257
So. 3d at 855. First, municipalities may be liable for injuries
caused by the wrongful conduct of their agents performed in
the line of duty. Second, municipalities may be liable for

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injuries caused by their failure, upon notice, to remedy defects
in public streets or buildings. Id."

Therefore, under § 11-47-190, the City may not be liable for the

plaintiffs' injuries unless their claims fall within one of these two

situations.

"[W]hen an issue of fact implicating whether immunity
applies in a given case is disputed, then the issue may be
submitted to a jury. …

"In the face of a properly supported motion for a
summary judgment invoking the immunity expressed in § 11-
47-190 … it is incumbent upon the nonmovant to present
substantial evidence of 'neglect, carelessness, or
unskillfulness' by a municipal agent, officer, or employee, or
to present substantial evidence that the municipality had
actual or constructive notice of a defect and failed to remedy
it and that such negligence or defect caused the plaintiff's
injuries."

Ex parte City of Muscle Shoals, 257 So. 3d at 856-57.

Section 11-50-50, Ala. Code 1975, authorizes municipalities to

construct and maintain drainage systems. "[W]hile 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." City of Mobile v. Jackson, 474 So. 2d 644, 649 (Ala. 1985).

Moreover, this Court has held that "the liability for negligent design or

maintenance of drainage systems is analogous to that involved in the
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construction and maintenance of streets, alleys, or public ways or

buildings." Id. It is undisputed that the City undertook control and

maintenance of the Nathan Estates pond as part of its municipal

stormwater-drainage system within its authority under § 11-50-50.

Thus, either of the § 11-47-190 exceptions to municipal immunity may

apply to the City's improvements to, and maintenance of, the pond.

The parties focus much of their arguments on whether the

plaintiffs' claims are based on the City's alleged negligent maintenance

of the pond or on its negligent design of the 2005 improvements. That is,

they focus heavily on whether the plaintiffs' claims fall within the first or

the second exception to municipal immunity. This distinction can be

critical in cases involving statute-of-limitations problems. See, e.g.,

Reichert v. City of Mobile, 776 So. 2d 761 (Ala. 2000), and Long v. City of

Athens, 24 So. 3d 1110 (Ala. Civ. App. 2009). However, no such issues

have been raised here. Thus, we do not find the distinction to be critical

to our analysis, as the parties suggest it is.

Most of the facts presented by the evidence are undisputed. The

primary points of dispute are whether the Nathan Estates pond is a

detention pond or a retention pond, what level of probability the

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February 2019 rainfall event exceeded, and whether the pond had

overflowed into the road before or after the City's 2005 improvements.

We find that none of these factual issues are determinative of the

question of municipal immunity. Thus, they do not present material

questions of fact suitable for a jury to decide.

The plaintiffs' claims, for purposes of both § 11-47-190 exceptions,

rest exclusively on the proposition that the City did not plan to pump

water out of the Nathan Estates pond during heavy rainfall events. The

question, thus, is whether the City may be held liable for planning only

for small events, be that a failure of maintenance or of design.

The plaintiffs argue that City employees failed to regularly pump

water out of the pond and failed to draw down the water level of the pond

before the February 2019 rains. This, they say, was "neglect,

carelessness, or unskillfulness" of City agents or employees for which the

City may be held liable under § 11-47-190. None of the cases cited by the

plaintiffs involved a failure to plan for heavy rainfall events. See Ex

parte City of Muscle Shoals, 257 So. 3d at 850 (involving plaintiff injured

by falling through grate at city park); Long v. Jefferson Cnty., 623 So. 2d

1130 (Ala. 1993) (involving house built directly over sewer; title

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inspection failed to show county easement and sewer ultimately

collapsed); Lott v. City of Daphne, 539 So. 2d 241 (Ala. 1989) (involving

city modifications to drainage system that deliberately diverted water

across plaintiffs' property, causing erosion); City of Mobile v. Jackson,

474 So. 2d 644 (Ala. 1985) (involving city permitting adjacent property to

be raised, interrupting water flow on plaintiff's property and causing

flooding); and City of Montgomery v. Patterson, 80 So. 3d 264 (Ala. Civ.

App. 2011) (involving plaintiff being hit in head when faulty window

covering fell at government-owned facility).

Moreover, the plaintiffs repeatedly make the point that the only

means by which water may leave the Nathan Estates pond is by

evaporation or infiltration into the surrounding soil. Whether it is a

detention pond or a retention pond, it had no outlet through which City

employees could pump water. It was not designed that way. Thus,

pumping could not have been part of the City's regular maintenance of

the pond.

The plaintiffs' expert witness offered no opinion about the City's

maintenance of the Nathan Estates pond. A report prepared for the City

after the February 2019 flood recommended drawing down water in the

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pond as part of "maintenance" to prevent future flooding in heavy rainfall

events. However, this was recommended after the City had laid pipe

through which water could be pumped to Gum Bottom. The City

employees who maintained the pond before that pipe was installed could

not have acted neglectfully, carelessly, or unskillfully in failing to pump

where no pipe existed through which they could have pumped water out

of the pond. The question whether the pipe should have been installed

sooner, thus altering the design of the Nathan Estates pond, relates not

to maintenance, but to an alleged problem with the pond itself.

The parties focus their arguments heavily on whether there is

evidence indicating that the City had notice of a defect in the pond after

its 2005 improvements were completed. The City argues that evidence

indicating that the Nathan Estates pond flooded before those updates

were completed cannot be used to support the plaintiffs' claims. Only

evidence of flooding after the date the improvements were completed, the

City says, may be evidence of the notice necessary under the second § 11-

47-190 exception.

The plaintiffs focus on the testimony of Amanda King. She stated

that the pond flooded the roads so that they were impassable for several

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days in 2005, after the City had completed its improvements. However,

later in her deposition, she admitted that she did not know if that flooding

happened before or after the improvements were done. The plaintiffs

urge that her first testimony cannot be discounted. See Alabama Dep't

of Revenue v. Greenetrack, Inc., 369 So. 3d 640 (Ala. 2022), and McGough

v. G & A, Inc., 999 So. 2d 898 (Ala. Civ. App. 2008). The City says that

the testimony is tenuous at best and is no proof that the City was on

notice of a defect in the pond.

Whatever weight must be given to King's testimony, it is

undisputed that the City used FEMA mapping and probabilities in its

planning. Thus, it had notice that there were smaller chances of higher

flooding in any given year, e.g., a 1% chance of a 100-year rainfall event.

The City, likewise, would have had notice that there was some

probability of back-to-back storms that would impact its stormwater

drainage system.

At the Nathan Estates pond, the City determined to increase the

pond's capacity as much as possible within the area available. This was

done to prevent frequent flooding of the surrounding roads. The City

used the industry standard 24-hour probabilities and worked within its

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standards requiring mitigation measures capable of dealing with 25-year

rainfall events in making the improvements. The City did not design the

pond or make any plans for protecting the plaintiffs' houses in cases of

larger, less probable rainfall events. The material question is whether

the City may be held liable for that decision, i.e., whether that decision

led to a negligent design that created a defect in the pond.

The plaintiffs argue that the failure to plan for smaller probability,

higher magnitude rainfall events creates a defect in the pond. Their

expert witness testified that all ponds in a stormwater drainage system

should have some outlet by which water can leave the pond besides

evaporation or infiltration. He stated that the City could have done

something -- but he did not know what -- to plan for smaller probability

rainfall events before they happened. The City counters that the Nathan

Estates pond is a retention pond that, by definition, does not have a

positive outlet and often holds pools of water. The pond thus operates as

designed.

Our cases say that negligent design can form the basis of municipal

liability. See City of Mobile v. Jackson, 474 So. 2d at 649. However, the

determinative question in this specific case seems not to involve a fault

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in the design itself, but the City's choice in how to plan. The question is

whether the City may be held liable for planning only for 25-year rainfall

events at the Nathan Estates pond. This question involves broader

issues regarding the City's policy choices about whether to plan for

smaller probability floods, the effect on adjacent landowners, and

annexation problems. These issues touch on broader questions involving

the City's stormwater-drainage system as a whole and questions

involving other City residents, not just these plaintiffs.

These questions touch on issues of substantive immunity, as the

City suggests. See Rich v. City of Mobile, 410 So. 2d 385 (Ala. 1982).

However, we need not address them here. The plaintiffs' expert witness

testified that it was within standard practice for municipalities to plan

only for 2- to 25-year rainfall events. He identified a growing trend

among municipalities to require mitigation measures capable of dealing

with of 100-year rainfall events. However, he testified that, at the time

of the City's improvements to and maintenance of the Nathan Estates

pond, the City's standards required mitigation measures capable of

dealing with 25-year rainfall events. Thus, according to his testimony,

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the City's decision to plan for only 25-year rainfall events was within

common municipal practice.

The evidence produced did not show that the City breached any

duty it might have by failing to plan for larger, less probable rainfall

events. Thus, it does not show that City employees or agents acted with

"neglect, carelessness, or unskillfulness" in designing those

improvements or maintaining the pond as required by § 11-47-190.

Likewise, the evidence does not show that the City's design of

improvements to the Nathan Estates pond was outside common practice

and defective within the meaning of the term "defect" in § 11-47-190.

Thus, the municipal immunity of § 11-47-190 applies to bar the plaintiffs'

claims for damages against the City.

Because the plaintiffs' claims for damages are barred by § 11-47-

190, we have no need to address the City's argument that the plaintiffs

are barred by principles of substantive immunity from using the City's

drainage manual at trial to establish the City's standard of care.

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Conclusion

Based on the foregoing, we grant the City's petition and issue the

writ directing the trial court to enter a summary judgment for the City

regarding the plaintiffs' negligence and trespass claims.

PETITION GRANTED; WRIT ISSUED.

Stewart, C.J., and Shaw, Wise, Mendheim, Mitchell, Cook, and

McCool, JJ., concur.

Sellers, J., concurs in the result.

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