author:
PER CURIAM. LYONS, Justice
      JOHNSTONE, Justice PER CURIAM. HOUSTON, Justice

text:
    COCA-COLA BOTTLING CO. CONSOLIDATED v. Louis Frank HOLLANDER.
    1020520.
    Supreme Court of Alabama.
    Oct. 31, 2003.
    Opinion Overruling Rehearing Jan. 30, 2004.

      Nickolas J. Steles of Ashe, Tanner & Wright, P.C., Tuscumbia, for appellant.
    Michael L. Weathers, Florence, for ap-pellee.
   PER CURIAM.

Louis Frank Hollander sued Coca-Cola Bottling Co. Consolidated (“CCBCC”), alleging retaliatory discharge in violation of Ala.Code 1975, § 25-5-U.l. CCBCC filed motions for a judgment as a matter of law (“JML”) at the close of Hollander’s evidence and again at the close of all the evidence. The trial court denied the motions. The jury returned a verdict in favor of Hollander, awarding compensatory damages of $150,000 and punitive damages of $250,000. After the trial court entered a judgment on that verdict, CCBCC filed a postverdict motion for a JML and a motion for a new trial or, in the alternative, a remittitur. The trial court denied those motions, and CCBCC appeals, contending that the trial court erred in denying the postjudgment motions. We reverse and remand.

Facts

Hollander was employed by CCBCC at its facility in Florence, Alabama, to deliver soft-drink vending machines and coolers. He was injured on Friday, August 27, 1999, when a fully loaded soft-drink vending machine, weighing between 700 and 1,000 pounds, fell on him while he and another worker were moving it into an elementary school in Collinwood, Tennessee. Hollander’s legs were pinned for between 5 to 10 minutes, and it took 8 to 11 people to lift the machine off Hollander.

On the day of the incident, Hollander reported this incident to his supervisor, William Talley. According to CCBCC, Talley asked Hollander if he had been injured when the machine fell on him and if he needed medical care, and Hollander said that he had suffered a cut on his leg but that he did not require medical treatment. Hollander says that Talley did not ask him if he needed to see a doctor and that he waited for guidance from Talley instead of asking to see a doctor. CCBCC’s employee handbook requires that all injuries, “no matter how minor,” be reported immediately to the injured employee’s supervisor, “who will take whatever actions necessary to insure required medical treatment is authorized and attained and that the First Report of Injury is completed. The Employee will be referred to a doctor of CCBCC’s choice.” It is undisputed that Hollander complied with that policy.

Talley reported the accident to CCBCC’s third-party accident claims administrator. The administrator completed a “first report of injury” form. In accordance with CCBCC’s standard procedure, Talley also completed a supervisor’s accident report. Hollander and his coworker continued to deliver and retrieve vending machines on the day Hollander was injured. Hollander claims that he could not drive the delivery truck after the machine fell on him on August 27 because of the condition of his legs and that his coworker, who did not have a commercial driver’s license, drove the truck the rest of the day. However, Hollander’s coworker testified that he did not drive the truck. After arriving at CCBCC’s facility in Tennessee at approximately 5:00 p.m., Hollander and his coworker began using a forklift to load machines onto the truck for delivery the next day. As Hollander was driving the forklift to load a machine, the machine fell off the forklift.

On Monday August 30, Hollander visited Dr. Glen Sockwell complaining of stress and shortness of breath. On August 31, Hollander left Talley’s office, stating, “I can’t do this.” On that same day Hollander visited Dr. Sockwell again. Dr. Sock-well’s office notes from August 30 and 31 mention nothing about an injury to Hollander’s legs or his August 27 injury. Also, on August 31 Dr. Sockwell gave Hollander a work-release slip excusing him from work for the period August 31 through September 12.

On September 1, 1999, Hollander visited the North Alabama Bone and Joint Clinic, a group of physicians approved by CCBCC to treat work-related injuries of its employees. Hollander saw Dr. Lee Nichols, one of the physicians at the clinic, and complained of pain in his right knee and left ankle as a result of the August 27 incident. Dr. Nichols did not consider it necessary to excuse Hollander from work because of the injury to his legs. Hollander has not made any claim based on the injuries he suffered as a result of the August 27 incident other than a claim for the medical expenses incurred in his September 1 visit to Dr. Nichols.

On September 7, Joe Clayton, general manager of CCBCC’s Florence facility, learned for the first time that Hollander was seeking workers’ compensation benefits for a heart condition and stress, for which Dr. Sockwell treated him on August 30 and 31. Clayton informed the claims administrator of Hollander’s claim and completed a first report of injury form related to Hollander’s heart condition and stress-related complaint. Robyn Masoner, a benefits coordinator with CCBCC, forwarded Dr. Sockwell’s work-release slip to Lou Jane Miller, CCBCC’s environmental safety manager at its offices in Brentwood, Tennessee, who was responsible for deciding whether an employee’s claim was com-pensable. Miller told Masoner that CCBCC did not consider Hollander’s heart condition and stress claim to be based on a compensable injury.

On September 8, Hollander returned to Dr. Sockwell’s office; he denies that he returned to Dr. Nichols’s office on that date. Dr. Nichols reported in his notes that he saw Hollander on September 8, but he admits that those notes are incorrect and that he actually had a telephone conversation with Hollander on that date. Dr. Nichols testified that in that telephone conversation Hollander asked him to

“write a work release or an excuse from work from the date of his [August 27] injury, because he said that when he presented the work release Dr. Sockwell gave him, his employer would not accept Dr. Sockwell’s work release because he was not their company doctor.”

Dr. Nichols admitted that his notes were in error in stating that he saw Hollander on September 8; he testified, however, that he could not have been mistaken as to Hollander’s asking him to backdate a work-release slip for him. As part of the regular claims procedure, Dr. Nichols’s office faxed the medical record notes of September 1, 1999, and September 8, 1999, to Miller at CCBCC’s offices in Brentwood, Tennessee. On September 13,1999, Miller faxed the notes to Clayton at CCBCC’s Florence facility, and he determined that, in asking Dr. Nichols to backdate a work-release slip, Hollander had been dishonest.

Before the conversation with Dr. Nichols related above, Hollander had made numerous telephone calls to Masoner and Miller inquiring about his workers’ compensation claim. Masoner told Hollander that he was not eligible for short-term disability to cover his time off work after September 1, and Hollander had already used all of his vacation time. According to Masoner’s testimony, at some point after learning the above, Hollander asked:

“What if I call my Worker’s Comp doctor [Dr. Nichols] back, the original doctor back that I went to for my Worker’s Comp injury, and get them to say that the reason I was off was due to the Worker’s Comp [August 27] injury?”

Masoner’s answer was that Hollander could not do that and that such an action “would be dishonest, and it would be a falsification.” Hollander denies that he told Masoner what she claims he did. After the telephone call with Hollander in which she says he inquired about talking to Dr. Nichols, Masoner telephoned Miller and told her about the conversation. It is at this point that Hollander allegedly telephoned Dr. Nichols to tell him that his employer would not accept Dr. Sockwell’s work-release slip because Dr. Sockwell was not a doctor approved by CCBCC and to ask Dr. Nichols to backdate a work-release slip so that Hollander could be paid for his time off. Dr. Nichols informed him that he would not backdate a work-release slip, and that, in any event, in his opinion Hollander could perform his work without any restrictions.

On September 13, 1999, Hollander returned to work. On September 14, Talley and Clayton informed Hollander that he was being terminated from his job for attempting to have Dr. Nichols backdate a work-release slip. Talley also showed Hollander Dr. Nichols’s notes and gave him a corrective action form, dated September 14, 1999. Hollander told Talley that he never asked Dr. Nichols to backdate a work-release slip and he refused to sign the corrective action form but instead wrote the following and initialed the form:

“Would like to talk to Dr. Nichols before I sign anything. F.H.”

Clayton testified that the sole reason Hollander’s employment was terminated was for dishonesty, based on Dr. Nichols’s notes indicating that Hollander had attempted to get Dr. Nichols to backdate a work-release slip. Hollander himself testified that because of the nature of his job— carrying large amounts of cash for use in the vending machines — dishonesty was a legitimate reason for CCBCC to terminate his employment. Talley completed an employee-separation form, which had specific codes for the reasons for terminating an employee. Talley chose 12D as the reason Hollander was terminated, the only category close in class to the offense Hollander was suspected of. It stated: “Termination — Falsifying Company Documents.”

Hollander saw two counselors after his employment was terminated to help him with his anguish about being terminated and with other problems. Hollander testified that he had lost income of $80,000 as a result of the termination and that he had used his own funds to pay to go to school to become a long-distance truck driver.

Hollander alleges that discrepancies exist between Talley’s reports and Talley’s deposition testimony and his trial testimony. In the August 27, 1999, first report of injury form, Talley reported that Hollander and another employee had lost control of the machine, dropping it on Hollander’s legs, and that as a result one of Hollander’s legs had been cut. Neither that report nor the supervisor’s accident report, also completed by Talley, mentioned that Hollander had been pinned under the machine. During Talley’s September 17, 2002, deposition, he stated that Hollander had reported that “a machine had fell on [him] and pinned him and hurt his legs.” Yet at trial in October 2002, Talley testified that Hollander did not tell him that he was pinned when the machine fell on him.

There were problems with other reports. Talley’s supervisor, Clayton, prepared a report that stated that Hollander was injured on August 30. Hollander did not work on August 30, which was a Monday. On Tuesday August 31, Hollander’s next scheduled work day, Talley met with Hollander twice and with Hollander’s coworker once to obtain further details of the August 27 incident. Talley claims that after Hollander learned that he had received two safety “corrective actions” for August 27 — one for the incident at the Collinwood elementary school and one for dropping a vending machine off the forklift — Hollander left the premises saying, “I can’t handle this.” The first incident required a corrective action because the coworker and Hollander were attempting to move a fully loaded machine when the incident occurred. CCBCC says that its rules prohibit moving a fully loaded machine. Hollander claimed that the rules regarding moving fully loaded machines were not properly enforced or well communicated. The second incident required a corrective action because Hollander did not know where his coworker was when he was moving the machine that fell off the truck.

Standard of Review

Alabama recognizes and protects an employer’s right to terminate an at-will employee for any reason — good or bad — or for no reason at all. Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833, 838 (Ala.2003) (“ ‘Under Alabama law, an employment contract is generally terminable at will by either party, with or without cause or justification — for a good reason, a wrong reason, or no reason at all.’ ” (quoting Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1121 (Ala.1992))). However, Ala.Code 1975, § 25-5-11.1, provides a narrow exception to that general rule, forbidding employers from terminating an at-will employee solely because that employee sought workers’ compensation benefits:

“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter .... ”

(Emphasis added.)

We review the trial court’s denial of CCBCC’s postverdict motion for a JML under the following standard:

“The standard of review applicable to a ruling on a [postverdict] motion for [a JML] is identical to the standard used by the trial court in granting or denying [a preverdict] motion [for a JML]. Thus, in reviewing the trial court’s ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
“... In ruling on a motion for a [JML], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been ‘substantial evidence’ before the jury to create a question of fact. ‘[Substantial 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.’ ”

American Nat’l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala.1993).

Analysis

The narrow language in § 25-5-11.1 makes it clear that a cause of action under that section cannot be based merely on facts that show that the plaintiff was terminated at some point after that plaintiff had sought or received workers’ compensation benefits. See Hayden v. Bruno’s, Inc., 588 So.2d 874, 876 (Ala.1991) (refusing to assume that an employee’s termination was retaliatory merely because it followed a claim for workers’ compensation benefits). Instead, § 25-5-11.1 requires that knowledge of the employee’s filing of a workers’ compensation claim be the sole motivating force behind the termination of employment. In order to establish a prima facie case, the plaintiff must demonstrate, by substantial evidence, a direct and distinct causal link between one having knowledge of the plaintiffs workers’ compensation claim and the termination. See Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002) (“A plaintiff must prove a causal connection between the workers’ compensation claim and the subsequent discharge in order to establish a prima facie case.”).

The first step in maintaining a cause of action for retaliatory discharge is to establish a prima facie case:

“We hold that an employee may establish a prima facie case of retaliatory discharge by proving that he was ‘terminated’ because he sought to recover worker’s compensation benefits, which would be an impermissible reason. The burden would then shift to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the plaintiff must prove that the reason was not true but a pretext for an otherwise impermissible termination.”

Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364, 1369 (Ala.1988).

As we review the evidence in the record, we indulge “all reasonable inferences that can be drawn from the facts as viewed in the light most favorable to” Hollander. L & L Servs., Inc. v. Com-Pak Food Marts of Florence, Inc., 575 So.2d 1094, 1095 (Ala.1991). Even so, Hollander’s prima facie case is weak. His only evidence is circumstantial. His argument is that because he had received satisfactory work evaluations and because his termination occurred close in time to his filing of a workers’ compensation claim, CCBCC must have terminated his employment because he filed a workers’ compensation claim. However, mere closeness in time typically is not sufficient evidence of a retaliatory discharge. Hayden v. Bruno’s, Inc., 588 So.2d 874, 876 (Ala.1991) (court refused “to assume that, because he was terminated after he had filed [a] claim, the termination was retaliatory”). Close temporal proximity between the claim and the termination must be so coincidental as to raise an inference that the claim caused the termination. See Rickard v. Shoals Distrib., Inc., 645 So.2d 1378 (Ala.1994); Overton v. Amerex Corp., 642 So.2d 450 (Ala.1994); Graham v. Shoals Distrib., Inc., 630 So.2d 417, 418 (Ala.1993); Culbreth v. Woodham Plumbing Co., supra. The alleged dishonesty occurred in conjunction with the claims process itself; therefore, it was not coincidental that CCBCC terminated Hollander’s employment close in time to his filing of a workers’ compensation claim.

Also, the satisfactory evaluations of his job performance are irrelevant to his claim because dishonesty, not poor job performance, was the basis CCBCC relied upon for terminating Hollander’s employment. Ex parte Usrey, 777 So.2d 66, 68 n. 1 (Ala.2000) (evidence of employee’s 30-day suspension for testing positive for drug use was irrelevant because employer “did not rely on the drug suspension as providing a permissible reason” for terminating employment). Actually, Hollander presented no evidence showing a causal connection between the filing of his claim for workers’ compensation benefits and his termination.

As this Court stated in Alabama Power Co. v. Aldridge, supra: “[I]f there is un-contradicted evidence of an independently sufficient basis for the discharge then the defendant is entitled to a judgment as a matter of law.” 854 So.2d at 568. That “independently sufficient basis” need not be the sole basis. It must simply be a legitimate basis for the termination. In Aldridge, the employee obtained a $500,000 judgment based on a retaliatory-discharge claim. The employee had left a message with his employer that he would not be at work because he needed to repair his roof, which, he said, had suffered some storm damage. Instead, the employee purportedly spent the day waiting for an insurance adjustor to assess the damage to his roof. The employee made an argument similar to the one Hollander makes here, and the employee presented evidence indicating that he had, in fact, made no misrepresentation. This Court reversed the trial court’s judgment because there was undisputed evidence that a legitimate reason existed for the discharge; therefore, Aldridge had failed to meet the proof necessary that, as required by § 25-5-11.1, he was fired solely because he had filed a workers’ compensation claim.

Even if we were to assume that Hollander had made a prima facie case against CCBCC, Hollander’s claim fails. Once Hollander presented a prima facie case that his employment was terminated because he had filed a workers’ compensation claim, CCBCC was entitled to present evidence indicating that there was another reason for his termination, which it did by presenting evidence indicating that it terminated Hollander for dishonesty.

Hollander claims that CCBCC and others involved in the claims process falsified records to cause him to be terminated and that CCBCC should have investigated the matter after Hollander denied that he had asked Dr. Nichols to backdate a work-release slip. The fact that CCBCC did not conduct such an investigation, Hollander argues, proves that dishonesty was a pretext for terminating his employment because he filed a workers’ compensation claim. Even if Hollander could prove that several individuals purposely falsified records and that Hollander did not ask Dr. Nichols to falsify a work-release slip for him, that would not prove that CCBCC used dishonesty as a reason for Hollander’s termination merely as a pretext for terminating him because he had filed a workers’ compensation claim.

Even if we assume that CCBCC believed Hollander to be innocent of the allegation that he had asked Dr. Nichols to backdate a work-release slip and we assume that further investigation would reveal his innocence, would that be sufficient to show pretext? Perhaps, but no evidence in the record supports such a supposition. In fact, after his employment was terminated, Hollander and his wife did go to see Dr. Nichols, and when Hollander asked Dr. Nichols if he would say anything different in the medical record notes, he indicated he would not. Therefore, any further investigation by CCBCC would have revealed nothing more than what it already thought had happened — that Hollander had attempted to have Dr. Nichols falsify a work-release slip for him.

Dr. Nichols’s medical record notes of September 8, 1999, incorrectly indicated that he saw Hollander on that date; no evidence in the record, however, indicates that the incorrect medical record had any effect upon Clayton and Talley’s decision to terminate Hollander’s employment, or that Clayton and Talley, if they had known that the record was incorrect, would not have terminated Hollander’s employment, or that Clayton and Talley themselves had falsified records for the purpose of creating a pretext for terminating Hollander’s employment. Hollander himself testified that he knew of no reason to think that at the time his employment was terminated CCBCC knew that Dr. Nichols’s notes were inaccurate insofar as they indicated that he saw Hollander on September 8, 1999.

Hollander asserts that he had no incentive to have a work-release slip backdated to before September 1, 1999, because he was off work from August 27 until August 81 not because of the August 27 injury but because those days were his normal “off days.” This fact, however, does not explain the motivation for CCBCC’s termination of Hollander’s employment. In fact, if we accept everything that Hollander says as true, including that he never asked Dr. Nichols to backdate any document, it still would not change the fact that CCBCC thought that, based on Dr. Nichols’s note indicating that Hollander had asked him to backdate a work-release slip, dishonesty was a legitimate basis for firing Hollander and that an investigation would not have changed CCBCC’s decision.

If Hollander had shown that CCBCC had acted in a discriminatory manner and had made it a practice not to investigate allegations of dishonesty against employees who had filed workers’ compensation claims, Hollander might have been able to prove that CCBCC’s reason for terminating his employment — dishonesty — was a pretext. Assuming CCBCC acted too quickly in terminating Hollander without a thorough investigation, that might be sufficient evidence of a pretext. Hollander, however, did not present any such evidence. Hollander failed to offer any evidence, much less substantial evidence, indicating that CCBCC terminated his employment solely because he had filed a workers’ compensation claim.

The evidence in the record shows no causal connection between Hollander’s filing of a workers’ compensation claim and the termination of his employment. Hollander presented no evidence indicating that CCBCC used dishonesty as a pretext for terminating employees who had filed workers’ compensation claims, that CCBCC’s termination of Hollander violated any company policy, or that CCBCC ever acknowledged that its stated reason for terminating Hollander’s employment was pretextual. Therefore, CCBCC’s stated reason for terminating Hollander’s employment precludes a finding that the fact that he filed a workers’ compensation claim was the “sole” cause of his termination.

Conclusion

We reverse the trial court’s order denying CCBCC’s motion for a JML and remand the case for the trial court to enter a judgment as a matter of law in favor of CCBCC. Our resolution of this issue pre-termits our consideration of the other issues raised by CCBCC.

REVERSED AND REMANDED.

HOUSTON, SEE, and BROWN, JJ., concur.

HARWOOD, WOODALL, and STUART, JJ., concur in the result.

LYONS and JOHNSTONE, JJ., dissent.

LYONS, Justice

(dissenting).

In Alabama Power Co. v. Aldridge, 854 So.2d 554, 567 (Ala.2002), this Court stated:

“Aldridge points to this Court’s decision in Culbreth [v. Woodham Plumbing Co., 599 So.2d 1120 (Ala.1992) ], which stated: ‘If the plaintiffs prima facie case is strong, and the defendant’s evidence of an asserted reason is weak or equivocal, the jury might simply disbelieve the defendant.’ 599 So.2d at 1122.”

The reason the employer gave for discharging the employee in Aldridge was that he had misrepresented why he had missed work. After sifting through the evidence in Aldridge and finding that the evidence for discharging the employee for misrepresentation was undisputed, this Court stated:

“The evidence of Aldridge’s misrepresentation as to why he missed work on February 17 is neither ‘weak’ nor ‘equivocal,’ and a jury would have no basis to ‘simply disbelieve’ APCo.”

854 So.2d at 569. Consequently, the jury in Aldridge had no basis for disbelieving the reason the employer proffered for discharging the employee.

The resolution of this case turns upon whether the evidence submitted by CCBCC concerning its stated grounds for discharging Hollander is weak or equivocal, allowing the jury to disbelieve it. As this Court stated in Aldridge, “[wjhether the plaintiffs prima facie evidence is strong and the defendant’s evidence is weak or equivocal and therefore subject to disbelief by a jury, as recognized in Culbreth [v. Woodham Plumbing Co., 599 So.2d 1120 (Ala.1992)], must be determined on a case-by-case basis.” 854 So.2d at 568.

I dissented in Tyson Foods, Inc. v. McCollum, 881 So.2d 976 (Ala.2003), in which the majority of this Court found that the testimony of the employer’s agent that he knew only that the employee had been injured on the job but did not know that the employee had filed a workers’ compensation claim established, as a matter of law, that the discharge had nothing to do with the employee’s claim. I agreed with Justice Johnstone’s conclusion in his dissent that “Smith’s [the corporate official who fired the employee] position as processing superintendent with authority to terminate employees, together with his knowledge of the plaintiffs on-the-job injury, supports a reasonable inference that Smith knew or deduced that the plaintiff had filed a workers’ compensation claim.” 881 So.2d at 986. I concluded that the jury in that case was entitled to disbelieve that testimony in light of the undisputed evidence that the employee’s injury resulted in the loss of a part of a finger.

We are presented in this case with the same question — what evidence is necessary to give rise to a jury question when the employer’s evidence, if believed, is fatal to the employee’s claim. The jury had before it evidence from which it could conclude that CCBCC’s documentation of Hollander’s injury had been falsified or, at the very least, was inaccurate and incomplete. The jury also had before it evidence that Hollander’s superiors at CCBCC had a negative attitude toward him after his injury. The majority accepts CCBCC’s right to take at face value a note from Dr. Lee Nichols, a physician at the medical clinic used by CCBCC, stating that Hollander had asked him to backdate a work-release slip, giving rise to CCBCC’s alleged sole basis for discharging Hollander. But, as CCBCC points out in its reply brief, “Even assuming, arguendo, that Dr. Nichols was mistaken about or misunderstood Hollander’s request, unless CCBCC knew that Dr. Nichols’s accusation was groundless, CCBCC still had a legitimate independent basis for terminating Hollander, based on the note.” (Emphasis added.)

The evidence before the jury indicated that the same doctor’s note dealing with Hollander’s alleged request for a backdated work-release slip also indicated that Dr. Nichols had performed a physical examination of Hollander on that date, which Dr. Nichols subsequently recognized was erroneous in view of the evidence indicating that Hollander’s contact with Dr. Nichols on that occasion was by telephone. When coupled with Hollander’s testimony in which he denied making a request for a backdated work-release slip, this rather remarkable error in Dr. Nichols’s note brings into question the credibility of Dr. Nichols’s entire testimony, including his testimony that he was unaware of any relationship between CCBCC and the clinic he was employed by and his lack of knowledge of any of the individuals at CCBCC who were accused of participating in Hollander’s discharge. Whether the discrepancy in the note containing observations about a physical examination that never took place was simply an innocent oversight or part of a conspiracy between CCBCC and its medical clinic to create a false medical record was a jury question.

If the jury rejected Dr. Nichols’s testimony and took into account the evidence concerning CCBCC’s inaccurate and incomplete handling of Hollander’s claim, its possible falsification of records, and the negative attitude Hollander’s superiors had toward him after his injury, then the jury was entitled to conclude that CCBCC procured a falsified note and used it as a pretext for firing Hollander, thus establishing that CCBCC knew that Dr. Nichols’s allegation that Hollander had asked him to backdate a document was groundless.

I must therefore respectfully dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. While the main opinion correctly recites that the applicable standard of review requires that “we review the evidence in a light most favorable to the nonmovant[, the plaintiff-employee in this case,]” American Nat’l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366 (Ala.1993) (citing Ritch v. Waldrop, 428 So.2d 1 (Ala.1982)), the main opinion does not state the evidence in accordance with this requirement of the standard of review.

The record in this case contains substantial evidence that the defendant-employer discharged the plaintiff solely because he claimed worker’s compensation and that the defendant-employer falsified its records and reports of the plaintiffs injury and claim, first, for the purpose of defeating his claim and, second, as a pretext for discharging him. Thus, I respectfully submit that we should affirm the judgment of the trial court.

On Application for Rehearing

PER CURIAM.

APPLICATION OVERRULED.

SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

HOUSTON, LYONS, and JOHNSTONE, JJ., dissent.

HOUSTON, Justice

(dissenting).

I am persuaded that Coca-Cola Bottling Co. Consolidated (“CCBCC”) knew that Louis Frank Hollander denied ever asking Dr. Lee Nichols to backdate a work-release slip, to misstate or misrepresent anything, or to falsify any medical record of any kind before CCBCC discharged Hollander for dishonesty. Hollander told his supervisor, William Talley, that Dr. Nichols’s statement that Hollander had asked him to backdate a work-release slip was untrue. It is without dispute that some portions of the medical records Dr. Nichols kept relating to Hollander were untrue. Therefore, I am now persuaded that whether CCBCC’s reason for discharging Hollander was a pretext was for the trier of the fact, who decided this issue in favor of Hollander.

Therefore, I dissent from the denial of rehearing.

      . Section 25-5-11.1 provides:
      “No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11.”

      . Hollander claims that only Talley informed him that he was being terminated.

      . Even this explanation was questionable. 854 So.2d at 558.

      . Actually, Hollander himself admitted in his testimony that the reason stated for his termination was dishonesty.

      . Whether the records were purposefully falsified or whether they contained clerical errors was a question for the jury. Regardless, Hollander was still under a duty to show that the records indicated pretext on the part of CCBCC.


source: Caselaw Access Project

author: JOHNSTONE, Justice. LYONS, Justice SEE, Justice STUART, Justice

license: Public Domain

text:
    Benjamin HOLLIS and Diana Hollis v. CITY OF BRIGHTON.
    1012381.
    Supreme Court of Alabama.
    Jan. 9, 2004.

      Stan Brobston of Brobston & Brobston, P.C., Bessemer; and Albert Lipscomb of Lipscomb & Lipscomb, P.C., Bessemer, for appellants.
    Thomas S. Hale of Burgess & Hale, L.L.C., Birmingham, for appellee.
   JOHNSTONE, Justice.

The plaintiffs Benjamin Hollis and Diana Hollis, husband and wife (“the plaintiffs”), appeal a summary judgment for the defendant City of Brighton (“the City”). We affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion. .

After a fire destroyed the plaintiffs’ house, the plaintiffs sued the City for failing- to extinguish the fire and for preventing the plaintiffs from trying to extinguish it. The plaintiffs claimed that the City was directly liable for negligence on the theory that the City, by creating' a fire department, undertook a duty to provide the plaintiffs with skillful fire protection and then breached this duty through the unskillful acts or omissions of the City-created fire department in responding to the fire. In addition, the plaintiffs claimed that the City was vicariously liable for negligence or wantonness based on the same unskillful acts or omissions of the members of the fire department. Finally, the plaintiffs claimed that the City was vicariously liable for the negligence or wantonness of a City policeman in allegedly ordering the plaintiffs not to reenter the burning house to fight the fire.

In moving for a summary judgment, the City asserted that it was entitled to immunity from the plaintiffs’ claims. First, the City claimed substantive immunity from the plaintiffs’ claims for direct liability and vicarious liability for the acts or omissions of the fire department and its firefighters and from the claim for vicarious liability for the act of the policeman. Second, the City asserted that the Voluntary Service Act, § 6-5-336, Ala.Code 1975, immunized the volunteer firefighters individually and that their immunity protected them from liability and thereby protected the City from vicarious liability for the firefighters’ torts, if any. Third, the City similarly asserted that § 6-5-338(a), Ala.Code 1975, immunized the policeman individually and that his immunity protected him from liability and thereby protected the City from vicarious liability for his tort, if any. In support of the summary-judgment motion, the City submitted an affidavit by the mayor, testifying in pertinent part:

“4. The City of Brighton is a small town located in Jefferson County, Alabama with a population of approximately 4,500.
“5. At the time of the fire on December 2, 1999, Brighton operated a volunteer fire department which consisted of approximately 9 local residents who served in a strictly volunteer capacity.
“6. The Brighton Volunteer Fire Department had 3 fire trucks.
“7. No firemen stayed at the station, and the volunteers kept their uniforms at home.
“8. At the time of the fire forming the basis of plaintiffs’ complaint, when a fire was reported to the dispatcher the following procedures were followed: 1) the dispatcher would flip a master switch and the firemen’s pagers would sound, giving the location of the fire; 2) the dispatcher would turn on the fire siren; 3) the firemen would hear the pager, get dressed at home or on the way, and report to station; 4) the first two firemen who arrived would take the fire truck and go to the fire; 5) other firemen would take other trucks as they arrived at the fire station.”

In response, the plaintiffs argued that: (1) substantive immunity was not applicable to their claims of direct and vicarious liability of the City for the failures of the fire department and its firefighters or to their claim of vicarious liability of the City for the act of the policeman, (2) § 6-5-336 immunity was not applicable because the firefighters were not “volunteers” within the meaning of the Voluntary Service Act, and (3) § 6-5-338(a) immunity was not applicable to the policeman’s ordering the plaintiffs to stay out of the house because his order was not a discretionary act. The plaintiffs cited Williams v. City of Tuscumbia, 426 So.2d 824 (Ala.1983), and Ziegler v. City of Millbrook, 514 So.2d 1275 (Ala.1987), in support of the argument that substantive immunity was not available to the City.

The plaintiffs argued that the firefighters were not volunteers because the City paid the firefighters a stipend for expenses of $10 per fire. In support of this argument, the plaintiffs submitted deposition testimony from two of the firefighters. The two firefighters testified about the volunteer status of the firefighters, in pertinent part:

“Q. Whose job is it when a fire is called in, to make sure that there’s enough people to respond to man the fire trucks and to use the equipment to put out a fire?
“A. That’s hard because there is no job. It’s not a job. We work as a team and you come out there. Whoever’s available to respond to come out, they’ll come out.
“Q. And if there’s nobody available, nobody responds?
“A. If nobody’s there, nobody will respond.
“Q. Well the firefighters that do go out to fight a fire, they get paid what? $10.00 per fire?
“A. Yeah. That’s for gas, not for fighting the fire.
“Q. But you get ten dollars?
“A. Yes.
“Q. Do you get paid more than the other firefighters as assistant [chief]?
“A. All the guys get the same.
“Q. So the only gas that you use in responding to a fire would be two miles, a mile there and a mile back, right?
“A. Yeah.
“Q. But, I mean, it doesn’t cost you ten dollars worth of gas to drive from City Hall and back, right?
“A. That’s what we get for gas.”
“Q. Now how many people were on the active list of firefighters on December 2nd, 1999?
“A. There was eight of us.
“Q. That were available for duty on December 2nd?
“A. That — They were volunteer firemen. All of them didn’t respond — All of them don’t respond to every fire because they have private jobs.
“Q. Depends on who’s available?
“A. That’s it.”
“Q. How much do you get paid for answering each fire?
“A. We don’t get paid. They just give us a little small donation once a month, ten dollars.
“Q. They give you ten dollars per fire?
“A. That’s it.”

The trial court entered a summary judgment “based upon substantive and discretionary immunity.” On appeal, the plaintiffs argue that this Court should reverse the summary judgment for the same reasons the plaintiffs argued to the trial court against the summary-judgment motion. Likewise, the City argues that this Court should affirm the summary judgment for the same reasons the City argued to the trial court in favor of the summary-judgment motion.

Issues

The dispositive issues are: (1) whether the City, by creating a volunteer fire department, undertook a duty to provide skillful fire protection, (2) whether § 6-5-336 protects the City from vicarious liability for the unskillful acts or omissions of volunteer firefighters in responding to a fire, and (3) whether § 6 — 5—338(a) protects the City from vicarious liability for the policeman’s ordering the plaintiffs not to reenter the burning house to try to extinguish the fire.

Law and Analysis

1. General Principles of Appellate Review

“We review a summary judgment de novo.” Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). “Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).

“In determining whether the nonmovant has created a genuine issue of material fact, we apply the ‘substantial-evidence rule’ — evidence, to create a genuine issue of material fact, must be ‘substantial.’ § 12-21-12(a), Ala.Code 1975. ‘Substantial evidence’ is defined as ‘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).”

Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala.2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).

A defendant who moves for a summary judgment on the ground of an affirmative defense “ ‘must support his motion with credible evidence, using any of the materials specified in Rule 56(c), [Ala.] R. Civ. P. (“pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits”). The movant’s proof must be such that he would be entitled to a directed verdict if this evidence was not controverted at trial.’ ” Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). On the other hand, a defendant who moves for a summary judgment on the ground of “a failure of the [plaintiffs] evidence ... must indicate where the [plaintiffs] case suffers an evi-dentiary failure.” Kennedy v. Western Sizzlin Corp., 857 So.2d 71, 78 (Ala.2003). If such a summary-judgment motion “does not inform the trial court (and the [plaintiff] ) of a failure of the [plaintiffs] evidence on a fact or issue, no burden shifts to the [plaintiff] to present substantial evidence on that fact or issue. Therefore, summary judgment for a failure of proof not asserted by the motion for summary judgment is inappropriate.” Tanner v. State Farm Fire & Cas. Co., 874 So.2d 1058, 1068 n. 3 (Ala.2003) (citations omitted).

Thus, on the one hand, a trial court should not grant a summary judgment, and an appellate court will not affirm one, on the basis of an absence of substantial evidence to support an essential element of a claim or affirmative defense unless the motion for a summary judgment has properly raised that absence of evidence and has thereby shifted to the nonmoving party the burden of producing substantial supporting evidence. Ex parte General Motors Corp., supra, Liberty Nat’l Life Ins. Co. v. University of Ala bama Health Servs., 881 So.2d 1013, 1020 (Ala.2003), and Tanner, 874 So.2d at 1068 n. 3. On the other hand, so long as the motion for a summary judgment has properly raised the absence of substantial evidence and the nonmoving party has not carried the shifted burden by producing substantial evidence, an appellate court will affirm a summary judgment on the basis of a law or legal principle not invoked by the moving party or the trial court, even though an appellate court will not reverse a summary judgment on the basis of a law or legal principle not first argued to the trial court by the nonmoving party. Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000), and Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988).

2. Direct Liability of the City for the Acts or Omissions of the Fire Department

On the one hand, a city is under no statutory duty to provide fire protection. Williams v. City of Tuscumbia, 426 So.2d 824, 825 (Ala.1983); see § 11-43-140, Ala.Code 1975 (“Cities and towns may maintain and operate a volunteer or paid fire department and may do any and all things necessary to secure efficient service ....”) (emphasis added). On the other hand, this Court held in Ziegler v. City of Millbrook, 514 So.2d 1275 (Ala.1987), and in Williams that the City of Millbrook and the City of Tuscumbia, respectively, by creating professional fire departments, had thereby undertaken a duty to provide skillful fire protection. This Court further held that, if the unskillfulness of the firefighters employed by the City of Millbrook and the City of Tuscumbia, respectively, caused a breach of that duty, the respective cities would be directly liable for the breach.

Ziegler and Williams, however, are distinguishable from the case now before us. The fire departments created by the City of Millbrook and the City of Tuscumbia were professional fire departments rather than volunteer fire departments. Because, in creating a volunteer fire department, a city is relegated to the vagaries of volunteer manpower, the undertaking by the city is too indistinct to support a legally enforceable duty to provide skillful fire protection.

The plaintiffs argue that the $10-per-fire stipend for expenses, which the City paid to the firefighters, constituted substantial evidence that the firefighters received compensation from the City and, therefore, constituted substantial evidence that the firefighters were professionals rather than volunteers. However, the plaintiffs presented neither evidence contradicting the firefighters’ testimony that the $10-per-fire stipend was strictly reimbursement of expenses nor affirmative evidence that the' $10-per-fire stipend was compensation for services. Thus, the undisputed evidence established that the firefighters were neither obliged to respond to a fire nor compensated for their services. The payment of the token $10-per-fire stipend for expenses does not constitute substantial evidence contrary to this conclusion.

We hold that in creating a volunteer fire department, a city does not thereby undertake a legally enforceable duty to provide skillful fire protection. Accordingly, without reaching the issue whether the City was due substantive immunity from the plaintiffs’ claim for direct liability for the acts or omissions of the firefighters, we affirm the summary judgment on that direct liability claim on the ground that the City did not owe a duty to provide skillful fire protection.

3. Vicarious Liability of the City for the Acts or Omissions of the Firefighters

The vicarious liability of a putative master under the rule of respondeat superior depends upon the liability of the putative servant. See Larry Terry Contractors, Inc. v. Bogle, 404 So.2d 613, 614 (Ala.1981) (“ ‘[W]hen [a] principal and his agent are sued in [a] joint action in tort for misfeasance or malfeasance of the servant, and his liability for the conduct of said servant is under the rule of respondeat superior, a verdict in favor of the servant entitles the master to have the verdict against him set aside.’ ”) (quoting Louisville & N.R.R. v. Maddox, 236 Ala. 594, 600, 183 So. 849, 853 (1938)), and Gore v. City of Hoover, 559 So.2d 163, 165 (Ala.1990), overruled on other grounds, Franklin v. City of Huntsville, 670 So.2d 848 (Ala.1995) (holding that a city could not be held vicariously liable for the act of a magistrate who was immune from liability). Thus, if a putative servant is not liable, either because he is innocent or because he is immune, no liability exists to be visited upon the putative master under the rule of respondeat superior. Id.

The Volunteer Service Act provides in pertinent part:

“(c) For the purposes of this section, the meaning of the terms specified shall be as follows:
“(1) GOVERNMENTAL ENTITY. Any ... municipality....
(4) VOLUNTEER. A person performing services for ... a governmental entity without compensation, other than reimbursement for actual expenses incurred....
“(d) Any volunteer shall be immune from civil liability in any action on the basis of any act or omission of a volunteer resulting in damage or injury if:
“(1) The volunteer was acting in good faith and within the scope of such volunteer’s official functions and duties for ... a governmental entity; and
“(2) The damage or injury was not caused by willful or wanton misconduct by such volunteer.”

§ 6-5-336, Ala.Code 1975.

As discussed above, the firefighters, the putative servants in the case now before us, were volunteers who did not receive compensation for their service as volunteer firefighters. Consequently, they were immune from liability for negligence under the Volunteer Service Act. Because the firefighters were immune from liability for negligence under the Volunteer Service Act, no liability for negligence could befall them to be visited upon the City, the putative master in the case now before us. While the plaintiffs allege not only negligence but also wantonness by the firefighters, and while § 6-5-336 excepts wanton volunteers from the immunity, a city cannot be liable for wanton conduct. Town of Loxley v. Coleman, 720 So.2d 907, 909 (Ala.1998), and Hilliard v. City of Huntsville, 585 So.2d 889, 892 (Ala.1991). Therefore, we affirm the summary judgment on the plaintiffs’ claim for vicarious liability for the acts or omissions of the volunteer firefighters.

4. Vicarious Liability of the City for the Act of the Policeman

The City invokes § 6-5-338 immunity against vicarious liability for the act of the policeman. Section 6-5-338(a) provides in pertinent part:

“(a) Every peace officer ... employed ... by ... [a] municipality [subject to conditions not relevant in the present lawsuit] shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary func tion within the line and scope of his or her law enforcement duties.”

(Emphasis added.)

Whether a qualified peace officer is due § 6-5-338(a) immunity is now judged by the restatement of State-agent immunity articulated by Ex parte Cranman, 792 So.2d 392 (Ala.2000), and adopted by a majority of this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000), and Ex parte Rizk, 791 So.2d 911 (Ala.2000). Howard v. City of Atmore, 887 So.2d 201, 203 (Ala.2003) (“Since Cranman, we analyze immunity issues [under § 6-5-338(a)] in terms of ‘State-agent’ immunity [as restated in Cranman], rather than ‘under the dichotomy of ministerial versus discretionary functions’ ”) (quoting Ex parte Hudson, 866 So.2d 1115, 1117 (Ala.2003)); see Giambrone v. Douglas, 874 So.2d 1046, 1051 (Ala.2003), and Ex parte Turner, 840 So.2d 132, 134 n. 1 (Ala.2002). Cranman reads:

“We therefore restate the rule governing State-agent immunity:
“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s [some emphasis added, some original]
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons [emphasis added]; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not [emphasis original] be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a government agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405.

We notice a difference between certain critical language in the statute, § 6-5-338(a), and certain critical language in the Cranman restatement describing the conduct immunized. That is, the statute refers to “conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties” while immune category (4) of the Cranman restatement refers to conduct “exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons.” In the particular case now before us, we need not decide whether or how the difference between the language of the statute and the language of the Cranman restatement affects the scope of the immunity, since the record does not establish without dispute or as a matter of law that the act of the policeman in ordering the plaintiffs not to reenter the burning house to fight the fire fits within either description of immune conduct. Nor does the record establish without dispute or as a matter of law that the act of the policeman fits within any of the other Cranman categories of immune conduct. Thus, we cannot rely on the § 6-5-338(a) immunity, as described by either the statute itself or the Cranman restatement, to affirm the summary judgment on the plaintiffs’ claim for vicarious liability for the act of the policeman. See Ex parte Rizk, 791 So.2d at 914:

“Dr. Rizk’s treatment of his patient, the plaintiffs decedent, does not fit within any of the categories of immune State-agent conduct contained in the Cran-man restatement. Therefore, Dr. Rizk is not immune.”

The policeman may or may not have been negligent in ordering the plaintiffs not to reenter the burning house to fight the fire. Thus, the City may or may not be liable for his conduct. That issue is not before us because the summary-judgment motion of the City did not raise the factual merits of the plaintiffs’ claims. See Liberty National and Tanner, supra. Accordingly, while we must reverse the summary judgment on this claim, we express no opinion about the factual merits.

5. Claim of the City to Substantive Immunity from Suit for the Act of the Policeman

The City also claims substantive immunity from suit for the act of the policeman. Substantive immunity, as it applies to police services however, immunizes only decisions of the governing authorities of a municipality not to deploy police officers or not to deploy more police officers for a particular service. See Calogrides v. City of Mobile, 475 So.2d 560 (Ala.1985); Garrett v. City of Mobile, 481 So.2d 376 (Ala.1985); and Nichols v. Town of Mount Vernon, 504 So.2d 732 (Ala.1987). Substantive immunity does not immunize a municipality from vicarious liability for the tortious act of a particular police officer. Borders v. City of Huntsville, 875 So.2d 1168, 1183 (Ala.2003), and City of Birmingham v. Benson, 631 So.2d 902, 905 (Ala.1993):

“In Calogrides v. City of Mobile, 475 So.2d 560 (Ala.1985), and Garrett v. City of Mobile, 481 So.2d 376 (Ala.1985), this Court found substantive immunity in a police context. Calogrides and Garrett arose out of the same event (a fireworks display at Ladd Stadium during which time a gang of youths attacked individuals in the large crowd). The thrust of the plaintiffs’ claims was that Mobile was negligent in deciding to deploy only 82 police officers to Ladd Stadium for the fireworks display. This Court held that liability could not be predicated on that basis, because there was only a finite number of officers on Mobile’s police force, so no individual could expect complete protection. Garrett, 481 So.2d at 377. This Court has upheld the liability of a city for the negligence of a police officer who was on the scene, where the only question was whether the officer had acted reasonably under the circumstances. Luker v. City of Brantley, 520 So.2d 517 (1987); Tyler v. City of Enterprise, 577 So.2d 876 (Ala.1991); Seals v. City of Columbia, 575 So.2d 1061 (Ala.1991). There is no way, under the facts of this case, that the imposition of liability can be reasonably calculated to materially thwart the City’s legitimate efforts to provide public services. Policy considerations supporting immunity do not come into play when a policeman is, in fact on the scene and in a position to control an aggressor. The question then becomes one of whether the officer acted reasonably or acted negligently.”

(emphasis in the original); see Howard v. City of Atmore, supra; Williams v. Crook, 741 So.2d 1074 (Ala.1999), and Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). Vicarious liability is based on the principle of respondeat superior, which is supported by sound policy:

“[Respondeat superior liability] seems fully justified because (1) it tends to provide a spur toward accident prevention; (2) it tends to provide greater assurance of compensation for accident victims; and (3) at the same time it tends to provide reasonable assurance that, like other costs, accident losses will be broadly and equitably distributed among the beneficiaries of the enterprises that entail them.”

Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray, The Law of Torts § 26.5, at 21 (2d ed.1986) (footnotes omitted).

Conclusion

We affirm the summary judgment on the plaintiffs’ claims for direct liability and vicarious liability for the alleged acts or omissions of the volunteer firefighters. We reverse the summary judgment on the plaintiffs’ claim for vicarious liability for the alleged act of the policeman and remand the case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, HARWOOD, and WOODALL, JJ., concur.

LYONS, J., concurs in the rationale in part and concurs in the judgment.

SEE, BROWN, and STUART, JJ., concur in part and dissent in part.

LYONS, Justice

(concurring in the rationale in part and concurring in the judgment).

I concur in the result as to Part 2, “Direct Liability of. the City for the Acts or Omissions of the Fire Department,” and Part 3, “Vicarious Liability of the City for the Acts or Omissions of the Firefighters.” I concur fully in Part 4, “Vicarious Liability of the City for the Act of the Policeman,” and Part 5, “Claim of the City to Substantive Immunity from Suit for the Act of the Policeman.” I therefore concur in the judgment.

I write specially with reference to Part 4. The day may well come when the restatement in Ex parte Cranman, 792 So.2d 392 (Ala.2000), should be modified so as to extend the reference in paragraph (4) dealing with “exercising of judgment in the enforcement of criminal latvs ,” 792 So.2d at 405 (emphasis added), to include an additional phrase dealing with “discharge of law-enforcement duties.” However, I agree with the main opinion that that issue at this stage of the proceedings in the instant case is not yet ripe for determination.

SEE, Justice

(concurring in part and dissenting in part).

I concur in affirming the summary judgment on the plaintiffs’ claims alleging direct and vicarious liability for the acts or omissions of the volunteer firefighters; however, I dissent from the reversal of the summary judgment on the plaintiffs’ claim alleging vicarious liability for the act of the policeman, because I believe the policeman was acting within the scope of the immunity provided by § 6-5-338(a), Ala.Code 1975.

STUART, Justice

(concurring in part and dissenting in part).

I would affirm the trial court’s summary judgment as to all counts. I respectfully dissent as to Parts 4 and 5 in the “Law and Analysis” section of the main opinion. I would hold that the police officer is immune from liability under § 6 — 5—338(a), Ala.Code 1975, and that the City is therefore immune from any vicarious liability for the act of the policeman.

BROWN, J., concurs.