author: BOLIN, Justice.

text:
    DISA INDUSTRIES, INC. v. Gregory BELL
    1160339
    Supreme Court of Alabama.
    June 29, 2018 Rehearing Denied September 14, 2018
    Joseph R. Duncan, Jr., and Philip R. Collins of Huie, Fernambucq & Stewart, Birmingham, for appellant.
    Evan G. Allen of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.
   BOLIN, Justice.

DISA Industries, Inc. ("DISA"), appeals from a judgment entered on a jury verdict in favor of Gregory Bell awarding $500,000 in compensatory damages.

Procedural History

On September 25, 2012, Bell sued DISA, Union Foundry Company ("Union Foundry"), and Duca Manufacturing and Consulting, Inc. ("Duca"), as well as fictitiously named defendants, based on injuries he suffered as an employee of Union Foundry. On March 13, 2014, and January 8, 2015, Bell amended the complaint, substituting the named defendants SPX Corporation ("SPX"), ABB, Inc. ("ABB"), and Anniston Iron Works, LLC ("Anniston Iron Works"), for the fictitiously named defendants. In the second amended complaint, Bell asserted claims of negligence and wantonness and a claim under the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD") against defendants DISA, Duca, SPX, ABB, and Anniston Iron Works, as well as claims arising under the Workers' Compensation Act against his employer, Union Foundry. Bell's wife, Althea Bell, asserted a loss-of-consortium claim against the defendants.

The claims against defendants ABB, SPX, and Anniston Iron Works were subsequently dismissed without prejudice. The claims against Union Foundry were consolidated for purposes of discovery, but were subsequently bifurcated for the purpose of trial.

Both DISA and Duca filed motions for a summary judgment. After conducting a hearing, the trial court granted the motion for a summary judgment filed by Duca and denied DISA's summary-judgment motion. The case went to trial against DISA.

On August 30, 2016, in accordance with the jury's verdict, the trial court entered judgment on behalf of Bell and against DISA, awarding Bell $500,000 in compensatory damages.

DISA filed a motion for a judgment as a matter of law and a motion for a remittitur, both of which were denied by the trial court. On January 23, 2017, DISA filed a notice of appeal.

Facts

A. The New Molding System

Union Foundry manufactures cast-iron pipe fittings. In 2000, Union Foundry entered into a contract with Georg Fisher DISA ("GFD"), a predecessor to DISA, for the purchase and installation of a "New GFD Molding System" at its foundry. Under the "Terms and Conditions" section of the contract, DISA set forth the following limitations, in pertinent part:

"8. Scope Limitations
"a. [DISA] reserves the right to make design, construction, and procurement decisions based on least cost, unless certain manufacturers, designs or methods are specifically provided for in writing in this Contract.
"b. Any equipment, structure or service item that is not included in writing in this Contract is hereby specifically excluded from the Scope of this Contract.
"c. [DISA] shall only be responsible for those items set forth as [DISA's] responsible [sic] in this Contract."

In its proposal, which subsequently became part of the contract, DISA listed the specific costs for the "Union Foundry New Molding System and Auxiliaries." DISA indicated the costs for "building alterations, platforms, and stairs" as $145,000, "detail and project engineering" as $310,000, "site supervision" as $150,000, and "startup assistance and commissioning" as $180,000. It also indicated that "relocat[ion] of the pouring furnace" and demolition would be "by Union." DISA indicated the total costs for the new molding system was $9,999,900.

DISA attached a "Scope of Supply" to its proposal. After meeting with Union Foundry officials, DISA subsequently provided an "expanded description of the material in [its] proposal," which included a more detailed "Scope of Supply" and set forth additional duties for Union Foundry. The expanded Scope of Supply indicated that DISA would install the equipment for the molding system, including spill-sand hoppers and conveyors, a casting conveyor system, a multi-cooler, and "work platforms (upper and lower at molding machine) ... and mold line access stiles." It also provided that "[a]ll equipment or fabrication supplied directly by [DISA] to be surface prepped and painted GFD blue. All other manufacturer/vendor supplied with manufacturer's standard finish/colors." DISA's Scope of Supply for the electrical installation was limited to the mold-line control system and other items related to the molding machine and conveyance system, such as providing necessary conduit, wire, and labor for the molding-machine control panels and spill-sand conveyor system. DISA further limited its scope of piping to the molding-line device and sand cooler. In addition, DISA's Scope of Supply for foundation and flooring was limited to the molding machine, auxiliary devices, cooling lanes, autopour unit, sand cooler, and reinforced floors.

The proposal also listed numerous responsibilities for Union Foundry, including the relocation of the "Duca pouring furnace, " "hot metal delivery," and "[a]nything not specifically listed in the proposal." However, the contract states "[DISA] to provide Duca pit in new location." The expanded agreement sets forth additional responsibilities for Union Foundry, including the following pertinent sections:

"A. Union [Foundry] will move the existing DUCA 5 ton capacity pouring furnace and service crane to the new pit after the new line is operational. Refractory replacement, power, water and control connections will be Union Foundries'[sic] responsibility. Union [Foundry] will modify the pouring spout, if necessary, to accommodate conditions of the new molding line.
"....
"C. Demolitions including modifying existing sand hoppers, sand conveyors, platforms, interior walls and removal of existing equipment [are] Union Foundry['s] responsibility.
"....
"L. Hot metal delivery, shot blast equipment and casting handling conveyors are Union Foundry responsibility."

In 1999, DISA provided initial "arrangement drawings" of the project to Union Foundry. The "drawing status" indicated that the arrangement drawings were "preliminary" and that "safety [was] given consideration in this design." Additionally, a handwritten approval note on the arrangement drawings specifically stated:

"These drawings approved as 'general concept as noted' only. This does not relieve [DISA] of design, engineering, manufacturing, construction or installation errors or flaws, omissions or inadequate performance of equipment, material or installation under [DISA's] work scope...."

The arrangement drawings included a general modification of the trough, which is where Bell was working when he was injured.

Union Foundry's engineers subsequently created more detailed drawings of the "furnace-platforms plan" that included a 24-inch modified extension of the trough. Union Foundry also created specific drawings of the "required modifications layout" and a "reference drawing" of the "pour launderer modifications," which included the 24-inch modified extension of the trough.

Before Union Foundry contracted with DISA and moved the furnace, the foundry employees referred to the area around the mid-level platform and trough as "the BMD line." After the furnace was moved and the project was completed, the employees began referring to both the mid-level platform area and the molding line as "the GFD line." The photographs of the foundry, which were taken shortly before trial, indicate that the mid-level furnace platform was painted yellow. A set of stairs leading from the mid-level platform down to the molding-line area were painted blue. At some point, the yellow letters "GFD" were affixed to the stairs, but DISA maintains that it did not affix the letters.

B. How the Furnace System and Molding Line Work

A fork truck brings large bars of metal into the foundry; they are placed on a large "ladle." A five-ton hoist moves the ladle into the furnace. The furnace heats the bars into molten iron. The furnace maintains the molten iron at approximately 2500 degrees Fahrenheit.

The furnace vessel is pressurized and has a trough, also known as a launderer, and a pour spout positioned on a mid-level platform above a conveyor system for the molding line below. The molten metal runs through the trough to the pouring spout along the mid-level platform. The hot molten metal is poured from the spout into molds that run under the furnace along a conveyance system.

At least two Union Foundry employees work on platforms above the molding-line conveyance system. A furnace attendant worked on the mid-level platform by the trough. Throughout the day, the furnace attendant pours iron from a ladle into the furnace and then walks to the trough area, where the attendant uses a dipper to take samples of the molten metal to be sent to the laboratory. The attendant also provides general maintenance around the area, such as removing slag from the furnace fill hole and removing iron buildup from the pour hole. Another Union Foundry employee, the pourer, works on another platform next to the mid-level platform. The pourer uses a joystick to control the movement of the molding system as the molten metal is poured from the pour spout on the mid-level platform into the molds below.

The molding machine mixes green sand, which is a mixture of sand, clay, and water, to form molds for the molten iron. The molds are transported on a conveyance system for cooling. Another conveyance system under the molds takes away the spilled sand.

C. The Foundry Accident

Bell worked as a furnace attendant on the mid-level platform next to the trough, which had been modified by the 24-inch extension. Bell's supervisors trained him to step over the trough. Workers, including supervisors, frequently stepped over the trough to perform work on the other side of the mid-level platform. There were, however, two other ways to access the other side of the trough. One approach was to go to the end of the platform by the furnace and walk around to reach the opposite side; Bell and the other employees, however, stayed away from this part of the platform because it was too narrow and the only guarding around it was a steel wire. Another approach was to walk down the steps, cross over the trough from below the mid-level platform, and walk up the steps to the other side; Bell testified that this was not an option for him because, if he were out of position during the pouring of a new batch, he would have been "written up" for "failure to be on the job."

On September 28, 2010, Bell took a lunch break, and a relief man worked as the furnace attendant in his place. During the break, the furnace was temporarily shut down, and the relief man lit a torch to prevent the iron from hardening. At some point, the furnace restarted. The relief man, however, did not extinguish the torch.

When he returned from lunch, Bell put on his personal protective equipment, including safety glasses, a tinted face shield, a heat jacket, heat pants, chaps, heat gloves, ear plugs, and the steel-toed boots required by Union Foundry, and returned to the mid-level platform. After the relief man left, Bell noticed that the torch, which was on the other side of the platform, needed to be extinguished. As he stepped over the trough, he tripped and his boot dipped into the molten metal. The boot began melting onto his foot. Bell tried to take the boot off, but there was a knot in his shoelace. Bell hollered and the pourer pulled the boot off for him.

Bell was transported to the burn clinic at the University of Alabama at Birmingham Hospital. He underwent four surgeries, including amputation of his toes, and he remained in the hospital for 30 days. One week after the accident, Union Foundry installed a guardrail around the modified trough to prevent workers from stepping over the trough.

Standard of Review

The standard of review for a ruling on a motion for a judgment as a matter of law ("JML") is as follows:

" 'When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala. 1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala. 1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala. 1992).'
" Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala. 2003)."

CSX Transp., Inc. v. Miller, 46 So.3d 434, 450-51 (Ala. 2010).

Discussion

A. AEMLD Claim

DISA argues that it was entitled to a JML because, it says, there was no legally sufficient evidentiary basis on which a reasonable jury could find in favor of Bell with regard to the AEMLD claim. Specifically, DISA contends that there is no evidence indicating that it sold, manufactured, or designed the modified trough and work platform and that the scope of its contract with Union Foundry did not include any such responsibility. It argues that Union Foundry was the actual designer of both the modified trough and the platform. DISA also maintains that the integration of its molding line with Union Foundry's furnace does not establish that it was the manufacturer of the foundry system in its entirety and that its molding line was not defective.

At trial, the Bells' theory on the AEMLD claim was that a defect in DISA's design of the modified trough-i.e., not including guardrails-caused Bell to suffer injuries he would not have otherwise suffered. Bell argues that the evidence established that DISA was the initial designer of the extension of the trough because DISA provided the arrangement drawings for the location of the furnace, the platform, and the pouring spout and its drafter certified the safety of the design. Bell maintains that the evidence established that DISA advised Union Foundry to extend the trough, which was level with the floor of the platform, by 24 inches but failed to specify that guardrails should be installed around the extension.

In addition, Bell asserts that, in the contract between DISA and Union Foundry, DISA reserved the right to formulate the design, construction, and procurement decisions. DISA, however, argues that the contract provision referencing design and construction was solely for the molding line and did not include the design or construction of any part of the furnace.

Under the AEMLD, "a manufacturer, or supplier, or seller, who markets a product not reasonably safe when applied to its intended use in the usual and customary manner, constitutes negligence as a matter of law." Casrell v. Altec Indus., Inc., 335 So.2d 128, 132 (Ala. 1976).

"[A] defendant will be liable under the AEMLD if it manufactures, designs, or sells an unreasonably dangerous product that reaches the consumer substantially unaltered and, because of its unreasonably dangerous condition, injures the consumer when put to its intended use. Under the AEMLD, therefore, a defective product is one that is unreasonably dangerous, i.e., one that is not fit for its intended purpose or that does not meet the reasonable expectations of the ordinary consumer."

Beam v. Tramco, Inc., 655 So.2d 979, 981 (Ala. 1995), citing Casrell, 335 So.2d at 133, and Entrekin v. Atlantic Richfield Co., 519 So.2d 447 (Ala. 1987). Furthermore, "it makes no difference whether it is dangerous by design or defect. The important factor is whether it is safe or dangerous when the product is used as it was intended to be used." Casrell, 335 So.2d at 133.

"In an AEMLD action, 'the plaintiff must affirmatively show that the product was sold with a defect or in a defective condition.' Jordan v. General Motors Corp., 581 So.2d 835, 836-37 (Ala. 1991). 'Without evidence to support the conclusion that the product was defective and/or unreasonably dangerous when it left the hands of the seller, the burden is not sustained.' Jordan, 581 So.2d at 837. 'Proof of an accident and injury is not in itself sufficient to establish liability under the AEMLD; a defect in the product must be affirmatively shown.' Townsend v. General Motors Corp., 642 So.2d 411, 415 (Ala. 1994)."

Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1051 (Ala. 2007).

The first question this Court must decide is whether DISA is a "manufacturer" for purposes of the AEMLD. DISA argues that the AEMLD claim must fail because, it says, there is no evidence indicating that it was a manufacturer, assembler, designer, or seller of the trough or platform. Bell, however, argues that the evidence establishes that DISA was the designer of the 24-inch extension of the trough that ran along the floor of the platform to the pour spout.

Bell relies heavily on Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839 (Ala. 2002), for the proposition that an engineering firm can be held liable under the AEMLD for its drawing and layout of a finished product and for supplying components that make up the finished product. In Hannah, the decedent was crushed to death between a "belt wrapper" and a "recoiler," collectively referred to as the "continuing annealing oven" ("the CAL"). In the 1960s, Westinghouse Electric Corporation had provided the electrical controls for the CAL. The plant owner had "provided Westinghouse with a full-scale layout of the control system it wanted" and "specified the types of devices that were to be included in the control stations." Hannah, 840 So.2d at 845. Westinghouse, however, drew the schematic for the sequence of operations of the CAL and supplied the control panel for the electrical controls of the CAL, as well as operator stations, motors, and the logic solenoid. On appeal, Westinghouse argued that it should not be held liable for its drawing of the control panels or control logic because neither was a "product" under the AEMLD. This Court disagreed, reasoning that "[t]he combination of the products supplied by Westinghouse made up the electrical controls of the CAL; thus, Westinghouse provided more than simply a service to Reynolds." 840 So.2d at 854.

In Hannah, the plaintiffs' experts testified that, although the plant owner had designed the layout of the buttons on the control panel, Westinghouse should have suggested a different design, one that included an interlock feature to turn off power to the belt wrapper and an audible warning on its control circuitry. This Court determined that there was substantial evidence creating a genuine issue of material fact as to whether Westinghouse negligently designed the control logic and negligently manufactured the electrical controls that operated the machinery.

DISA, however, asserts that Hannah is distinguishable because in Hannah Westinghouse was the actual designer of the electrical-control system. Upon reviewing the more detailed drawings that were created by Union Foundry after DISA's initial general arrangement drawings were issued, the Bells' own expert, Dr. Igor Paul, a mechanical engineer and professor of engineering at Massachusetts Institute of Technology with at least 50 years of experience, testified that DISA was not the actual designer or manufacturer of the modified trough.

Bell, citing Foremost Insurance Co. v. Indies House, Inc., 602 So.2d 380, 382 (Ala. 1992), asserts that DISA was liable for a defective product even if another company was the manufacturer of the product, here the furnace, because DISA integrated the product into the foundry line. In Foremost Insurance, a mobile-home manufacturer was found liable under the AEMLD for a defective refrigerator it had incorporated into a finished mobile home. The refrigerator had been manufactured by another entity. When determining whether the mobile-home manufacturer was merely a distributor of the refrigerator or a manufacturer of the entire home, the Court held that Indies House, Inc., became the manufacturer of the mobile home in toto when it combined its finished product with other materials to create a mobile home. 602 So.2d at 382. Foremost Insurance, however, is distinguishable from the case before us, because it is clear that DISA did not install the modified trough or platform.

DISA argues that the integration of its molding-line system into the foundry-line system does not establish that it was responsible for guarding a hazard on the foundry line. DISA contends that a determination that a manufacturer or designer of a piece of equipment is responsible for a system as a whole merely because the equipment was connected to, or integrated with, another's system is contrary to Alabama law. DISA relies on this Court's opinion in Hicks v. Vulcan Engineering Co., 749 So.2d 417, 423 (Ala. 1999), in which the Court held that a general contractor who installed a machine completed by another company without making any modifications to the machine and without deviating from the specified procedure for installation was not a "manufacturer" under the AEMLD.

In Hicks, a maintenance mechanic employed by Square D Company, a foundry, was killed while performing maintenance on the BMM Weston machine, a molding component of the foundry system. Square D Company had purchased the machine directly from the manufacturer, BMM Weston. BMM Weston's contract with Square D provided that Square D would provide all installation instructions and normal start-up service and training and would supervise installation of the machine. Vulcan Engineering, the general contractor for the foundry project, integrated the BMM Weston machine into the foundry line by attaching it to a conveyor system built by Vulcan Engineering and affixing the machine to Square D's electrical and pneumatic lines. BMM Weston's and Square D's representatives supervised Vulcan Engineering's installation of the machine, using BMM Weston's drawings and specifications. A BMM Weston representative loaded the control program for the BMM Weston machine into the foundry line's computerized controller. The Court reasoned:

"The BMM Weston machine was not a defective part until after it was integrated into Square D's foundry and was programmed by BMM Weston with a 45-second delay sequence that made the BMM Weston machine, according to the plaintiff's experts, unreasonably dangerous."

749 So.2d at 424. This Court concluded that holding that Vulcan Engineering was a manufacturer of a product under those circumstances would be an unsupported expansion of the AEMLD.

Bell asserts that Hicks, however, is distinguishable. Specifically, they argue that, unlike DISA, Vulcan Engineering did not dictate the method of installation, the specifications for the layout, or otherwise modify the machine or its operation.

DISA maintains, and the record substantially demonstrates, that it did not manufacture, design, or manage the operation of the modified trough or platform. The evidence likewise does not show that DISA sold or manufactured the modified trough to Union Foundry or that it was the designer of the new foundry system in its entirety.

Although DISA initially provided arrangement drawings that set forth the general location of the furnace and the molding line to Union Foundry, the evidence indicates that Union Foundry subsequently created more detailed drawings of the work-platform and pour-launderer modifications. Nothing in the record indicates that Union Foundry conferred with DISA about its more specific design of the modified trough. Upon reviewing all the drawings and the contract between Union Foundry and DISA, the Bells' own expert, Dr. Paul, testified that Union Foundry was the actual designer of the platform and acknowledged that Union Foundry "actually modified and designed the extended pour launderer." Thus, it is clear that the AEMLD is not applicable, because DISA was not a manufacturer, designer, or seller of the modified trough.

It should be noted that the Bells' counsel recognized the inadequacy of the AEMLD claim when he conceded during oral argument: "I think this is a negligence case, Judge, I really do. And I think we can-I think we could drop the AEMLD and go to negligence claims. I agree that they both were product manufacturers of certain aspects, but I think based on the caselaw they presented they were not a product manufacturer of the product as a whole."

B. Negligence Claim

This Court now turns to the next issue, i.e., whether the Bells presented substantial evidence of negligence to withstand DISA's motion for a JML. Bell asserts that DISA's supervisory role on the project created on its part a duty to inform Union Foundry of the obvious need for guardrails around the modified trough and pour spout. DISA argues that the Bells failed to prove that it had a duty to ensure that railings were installed around the trough or to warn Union Foundry that railings were necessary. Specifically, it argues that supervising the area around the modified trough was not within the scope of its contract.

To prove negligence, a plaintiff must establish: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury. Farr Metal, Inc. v. Hines, 738 So.2d 863 (Ala. 1999), citing Crowne Invs., Inc. v. Bryant, 638 So.2d 873 (Ala. 1994).

First, DISA argues that nothing in its contract with Union Foundry indicates that it had a duty to supervise areas outside the molding line, such as the modified trough, and, therefore, that it had no duty to warn or advise Union Foundry to install railings around the modified trough and pour spout. Upon review of the contract, which includes the Scope of Supply, it is obvious that the molding-line system was DISA's responsibility and that the furnace system, which includes the modified trough and mid-level platform, was Union Foundry's responsibility. Although the price list for the new molding system indicates that Union Foundry contracted with DISA to provide "site supervision" and "startup assistance," it is clear that the scope of DISA's supervisory duty was limited to the "new molding system."

Bell points to the Bells' engineering expert's testimony that the contract establishes that DISA supervised the operation of the furnace area, including the trough. During the cross-examination of Dr. Paul, the following exchange occurred:

"Q. All right. Do you know of any specific evidence that DISA would have even trained any Union Foundry workers about the operation of the furnace on this project?
"A. Well, they had to train them in terms of the-the line was speeded up, I forget, to about 115 per hour, which was a significant speedup, and to feed that-the molds-the furnace had to provide the increased rate of metal, so both the plaintiff up on the platform and the pourer filling the mold had to be-had to cooperate and had to be working faster than before this line.
"Q. Do you know of any piece of evidence in this case that DISA trained Union Foundry's workers on how to operate the furnace?
"A. Not how to operate the furnace. How to operate the trough and interacting with the mold.
"Q. What is the testimony that they trained any Union Foundry employee about how to operate the trough, or what is the evidence?
"A. Well, only that their contractual-saying that they would be training the personnel.
"Q. So it says in this contract that they would train Union Foundry personnel on operating the furnace or the trough?
"A. No. Operating the system.
"Q. And you don't know whether Union Foundry considers that to be a separate system-
"A. I don't.
"Q. -from the molding line?
"A. I don't."

The problem with Dr. Paul's testimony regarding the extent of DISA's contractual responsibility is that it is contrary to both the evidence presented at trial and to Alabama law. "Generally, a witness, whether expert or lay, cannot give an opinion that constitutes a legal conclusion or amounts to the application of a legal definition." Hannah, 840 So.2d at 852 (citing Phillips v. Harris, 643 So.2d 974, 976 (Ala. 1994), and C. Gamble, McElroy's Alabama Evidence § 128.07 (5th ed. 1996) ). As previously discussed, the documents forming the contract indicate that the molding-line system and the furnace system are separate systems. The attachment of the molding-line system, provided by DISA, to the furnace system, alone, does not establish that DISA was responsible for the foundry system in its entirety. See Hicks, 749 So.2d at 423. The contract indicates that Union Foundry was responsible for the furnace system, including relocation of the pouring furnace, hot-metal delivery, modifications, and "anything not specifically listed in the proposal" and that DISA was responsible for the molding-line system. The contract, including the attached Scope of Supply and its expanded description, sets forth DISA's responsibilities for supervision of the "new molding line." Mike Lewis, "Vice President of Sales in North America," testified that DISA's expertise is in green-sand molding and that DISA would not have contracted to provide "either expertise or direct support on furnaces." There was no evidence presented at trial indicating that the scope of DISA's contractual duties extended beyond the molding line to the furnace system, which includes the modified trough. Moreover, although the modified trough and pour spout are on the mid-level platform just above the molding line, there is no witness testimony or other evidence indicating that DISA oversaw the work of the furnace attendant or the area around the modified trough at the start-up of the molding system.

DISA cites Mueller Co. v. Trambeam Corp., 693 So.2d 1380 (Ala. Civ. App. 1997), another foundry case, as support for its argument that it had no duty to advise or to warn that guardrails should be installed around the modified trough. In Mueller, an overhead crane system collapsed in a foundry. The foundry owner claimed that Hoist Services International ("HSI") was negligent because, the owner said, HSI had failed to properly inspect the bolts on the runway of the crane. HSI was hired only to inspect the mechanical functions of the bridge crane and runway system. HSI contended that it had no responsibility to inspect the bolts in question because its bid stated that the inspection was limited to " 'inspection ... of mechanical functions [of the crane] only.' " 693 So.2d at 1384. The foundry owner, however, argued that HSI had a duty to inform it that additional restraints were needed. The owner also argued that HSI had a responsibility to inform or report whether the crane system was in compliance with a safety provision requiring an independent restraining system to hold the crane in place in the event of a bolt failure. This Court determined that, because the runway where the bolts were located did not contain any mechanical functions designated within the limited scope of the agreement, HSI had no duty to inspect the runway for such defects. Id.

In this case, DISA had no contractual duty to inspect or to supervise any area above or beyond the molding line. Because the documents that formed the contract between Union Foundry and DISA did not establish any duty requiring DISA to inspect the modified trough, it is clear that the contract itself is insufficient to establish that DISA negligently failed to advise or to warn Union Foundry to guard the area around the trough.

Bell asserts that DISA's reliance on Mueller is misplaced and that this Court's decision in Hannah, supra, is more applicable. In Hannah, the plaintiff presented expert testimony that industrial general contractors had known of pinch-point defects for decades and that barrier guards would have eliminated the hazard. A safety expert testified that the general contractor should have informed the buyer of the need of a barrier guard around the machinery. As to the contractor GB & B, this Court held that a contractor is " 'not free to comply with obviously defective plans and specifications that the contractor should know may create unreasonably dangerous conditions. Rather, a contractor is expected to act reasonably under the particular circumstances in order to avoid accidents.' " Hannah, 840 So.2d at 847 (quoting Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981, 984 (Ala. 1992) ). This Court found that there was a genuine issue of fact as to whether the absence of a barrier guard between the belt wrapper and the recoiler was an "obvious defect" that GB & B should have recognized and remedied. 840 So.2d at 849.

In Hannah, this Court, however, also found that the "obvious-defect" rule was not applicable to the manufacturer, Westinghouse, because it "did not simply follow plans and specifications to design the electrical control system." 840 So.2d at 856. Instead, the buyer provided Westinghouse a layout of the electrical-control system and specified the types of devices to include at the operator's stations. This Court determined that, because Westinghouse retained the ultimate control over how the finished product would perform, it had a duty to remedy the defect in the finished product to prevent foreseeable harm. 840 So.2d at 856-58.

As previously discussed, DISA did not have ultimate control over the foundry project; the scope of DISA's contract did not extend to areas beyond the molding line, which was below the mid-level platform and modified trough. In addition, there is no evidence, other than Dr. Paul's speculative testimony, indicating that DISA actually trained the furnace attendant on the modified trough and platform. This Court, therefore, cannot conclude that a DISA employee supervising the start up of the molding line on the floor of the foundry, which was below the mid-level platform where the accident occurred, should have informed Union Foundry of the need to install guardrails around Union Foundry's modified trough. We therefore conclude that the Bells failed to overcome their burden of producing substantial evidence creating a factual dispute requiring resolution by the jury. Based on the foregoing, we reverse the trial court's judgment based on the jury's verdict, and we render a judgment in favor of DISA.

REVERSED AND JUDGMENT RENDERED.

Stuart, C.J., and Main, Wise, and Sellers, JJ., concur.

Shaw, J., recuses himself.

      The Court notes that a negligence claim is not subsumed by an AEMLD claim. Given that the judicially created AEMLD does not subsume a common-law action of negligence, the Court must consider the claims separately. See Vesta Fire Ins. Corp. v. Milam & Co. Constr., 901 So.2d 84 (Ala. 2004) ; Tillman v. R.J. Reynolds Tobacco Co., 871 So.2d 28, 34-35 (Ala. 2003) ; and Garrie v. Summit Treestands, LLC, 50 So.3d 458, 463-64 (Ala. Civ. App. 2010).

      There is no dispute that the proposal became part of the contract between Union Foundry and DISA.

      The evidentiary materials indicate that there were numerous platforms throughout the foundry. The Scope of Supply, however, was limited DISA's specific responsibility to the molding-machine platforms.

      The trial court denied DISA's motion for a summary judgment without explanation. The Bells, however, did not present the AEMLD claim in their trial brief. Nonetheless, at the close of the Bells' case, counsel explained that the Bells did not concede to dismissal as to all theories under the AEMLD. Specifically, counsel argued that the AEMLD claim should proceed to the jury based, he said, on the terms of the contract between the parties and Dr. Paul's deposition testimony indicating that DISA was a designer and had supervisory responsibility over the project. The Bells' counsel did concede, however, that any argument regarding a "failure to warn" under either the AEMLD or a general negligence claim should be dismissed. The court denied the motion for a summary judgment and allowed all claims, including the AEMLD claim, to proceed.

      There likewise is no evidence indicating that DISA took any affirmative steps outside its contracted duties to design, engineer, or inspect the platform and the modified trough or to supervise the furnace attendant's work on the platform. "[A] plaintiff may argue that another party has duties independent of any contract because that party has acted affirmatively." Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So.2d 496, 502 (Ala. 1984). "The existence of a collateral contract does not negate the obligation imposed in tort to act reasonably." Id.


source: Caselaw Access Project

author: MENDHEIM, Justice.

license: Public Domain

text:
    EX PARTE CITY OF MONTGOMERY and Charday P. Shavers
    (In re Carlishia Frank v. Charday P. Shavers, Individually and in Her Official Capacity, and the City of Montgomery, a Municipal Corporation)
    1170103
    Supreme Court of Alabama.
    August 31, 2018
    Stephanie Smithee, City of Montgomery Attorney's Office, Montgomery, for petitioners.
    Jeffrey G. Hunter of Floyd, Hunter, Kies & White, P.C., Millbrook, for respondent.
   MENDHEIM, Justice.

Police officer Charday P. Shavers and the City of Montgomery ("City") petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying Shavers and the City's joint motion for a summary judgment in a tort action filed against them by Carlishia Frank and to enter a summary judgment for them. We grant the petition and issue the writ.

I. Facts and Procedural History

On November 15, 2013, Shavers was driving her patrol car west on Hitching Post Lane when she received a dispatch about a vehicular accident. Thereafter, she stopped her patrol car on Hitching Post Lane at the traffic light at the intersection of that road and Eastern Boulevard. While stopped at the intersection, Shavers received a dispatch update that the accident involved a pregnant woman and that the other driver was trying to flee the scene.

In order to proceed through the intersection, Shavers had to cross four northbound lanes on Eastern Boulevard (including the left-turn lane) to travel south on Eastern Boulevard. The dashboard-camera in Shavers's patrol car indicates that, after receiving the dispatch update, Shavers activated the emergency lights on her patrol car. Between three and four seconds later, Shavers activated the siren. During that interval, Shavers waited for the northbound vehicles that had entered the intersection to pass through the intersection. Approximately one second after Shavers activated the siren, another northbound vehicle that had entered the intersection proceeded through the intersection.

Before Shavers's patrol car entered the intersection, the other vehicles traveling in the two northbound lanes closest to Shavers came to a complete stop. According to Shavers's deposition testimony, she believed the third lane (the lane farthest from her, excluding the turn lane) was clear, though Shavers admitted that her view of that lane was blocked by the vehicles stopped in the other two northbound lanes. As Shavers's patrol car began to cross the third lane, Frank's vehicle entered the intersection and collided with the driver's side of Shavers's patrol car. The collision occurred between four and five seconds after Shavers began slowly proceeding into the intersection, approximately nine seconds after Shavers had activated her emergency lights and approximately five seconds after she had activated her siren.

It is undisputed that the traffic light regulating Frank's lane of traffic was green and that the traffic light regulating Shavers's lane was red. The Alabama Uniform Traffic Crash Report ("AUTCR") for the collision, which was prepared by an investigating officer for the City, indicates that Frank's vehicle was traveling at a speed of approximately 35 miles per hour when her vehicle collided with Shavers's patrol car. According to Shavers's deposition testimony, "[t]here [were] quite a few" vehicles stopped in the two lanes of northbound traffic on Eastern Boulevard when she began to proceed into the intersection. The AUTCR also includes a statement from a witness who was in a commercial truck "a good distance" behind Frank. The witness stated that, "due to vehicles in the road," Frank could not see Shavers's patrol car. Frank testified in her deposition that she first noticed Shavers's patrol car "when the accident happened" and that she did not see the stopped vehicles in the other two northbound lanes of Eastern Boulevard or the emergency lights on Shavers's patrol car. Shavers admitted in her deposition testimony that she had violated her training by proceeding into the intersection without knowing that the traffic in the third lane had stopped and that the City had determined she was "at fault" for the collision.

On October 26, 2015, Frank sued Shavers, in both her official capacity and her individual capacity, and the City of Montgomery in the Montgomery Circuit Court. Frank asserted two claims. The first claim alleged that Shavers was liable under theories of negligence and wantonness. The second claim alleged that the City was liable for Shavers's wrongful conduct under the theory of respondeat superior.

The City and Shavers, respectively, filed answers to Frank's complaint. The City and Shavers admitted Frank's allegation that Shavers was employed by the City at the time of the collision, and they denied all other allegations. The City and Shavers also asserted several affirmative defenses, including the defenses of State immunity and State-agent immunity.

On August 10, 2017, Shavers and the City filed a joint motion for a summary judgment, asserting that, pursuant to § 6-5-338(a), Ala. Code 1975, and Ex parte Cranman, 792 So.2d 392 (Ala. 2000), Shavers was entitled to State-agent immunity and the City was entitled to the benefit of Shavers's immunity pursuant to City of Bayou La Batre v. Robinson, 785 So.2d 1128, 1131 (Ala. 2000). Shavers and the City submitted excerpts from Shavers's deposition, the dashboard-camera video from Shavers's patrol car, and the AUTCR in support of their summary-judgment motion. Shavers and the City argued that they had met their burden of showing that Shavers's actions qualified for State-agent immunity and that the burden had shifted to Frank to show that Shavers's actions fell within one of the two exceptions to State-agent immunity discussed in Cranman. See 792 So.2d at 405.

On September 14, 2017, Frank filed her opposition to the summary-judgment motion and a brief in support. Frank contended that Shavers had not complied with § 32-5A-7 and § 32-5A-115, Ala. Code 1975, regarding emergency vehicles and, thus, that neither Shavers nor the City was entitled to immunity. Frank included a single sentence addressing a part of the second exception to State-agent immunity as discussed in Cranman: "Shavers is not entitled to immunity because she acted beyond her authority."

On October 2, 2017, the circuit court entered an order denying Shavers and the City's joint motion for a summary judgment.

Shavers and the City timely filed a petition for a writ of mandamus.

II. Standard of Review

" 'While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.' Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000). A writ of mandamus is an extraordinary remedy available only when there is: '(1) a clear legal right 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) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)."

Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003). Also,

"whether review of the denial of a summary-judgment motion is by a petition for a writ of mandamus or by permissive appeal, the appellate court's standard of review remains the same. If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P. In determining whether there is a [genuine issue of] material fact on the question whether the movant is entitled to immunity, courts, both trial and appellate, must view the record in the light most favorable to the nonmoving party, accord the nonmoving party all reasonable favorable inferences from the evidence, and resolve all reasonable doubts against the moving party, considering only the evidence before the trial court at the time it denied the motion for a summary judgment. Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000)."

Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002).

" 'When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). Evidence is "substantial" if it is 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." Wright [v. Wright], 654 So.2d [542,] 543 [ (Ala. 1995) ] (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989) ).' "

Wilson v. Manning, 880 So.2d 1101, 1102 (Ala. 2003) (quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala. 1997) ).

III. Analysis

Shavers and the City contend that the circuit court erred in denying their joint motion for a summary judgment because, they say, pursuant to Cranman and § 6-5-338, Shavers is entitled to State-agent immunity, and the City is afforded the benefit of Shavers's immunity. Shavers and the City also argue that there is no evidence indicating that Shavers "acted willfully, maliciously, fraudulently, in bad faith, or beyond her authority; and [that,] absent such a showing, she is entitled to immunity." Petition, at p. 10. We agree.

Section 6-5-338(a), Ala. Code 1975, states:

"Every peace officer ... who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as a peace officer ... by the state or a county or municipality thereof, ... and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, 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 function within the line and scope of his or her law enforcement duties."

This Court has also stated:

"It is well established that, if a municipal peace officer is immune pursuant to § 6-5-338(a), then, pursuant to § 6-5-338(b), the city by which he is employed is also immune. Section 6-5-338(b) provides: 'This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers.' ... See Ex parte City of Gadsden, 781 So.2d 936, 940 (Ala. 2000)."

Howard v. City of Atmore, 887 So.2d 201, 211 (Ala. 2003) (emphasis omitted).

This Court has held that "[t]he restatement of State-agent immunity as set out by this Court in Ex parte Cranman ... governs the determination of whether a peace officer is entitled to immunity under § 6-5-338(a). Ex parte City of Tuskegee, 932 So.2d 895, 904 (Ala. 2005)." Ex parte City of Montgomery, 99 So.3d 282, 292 (Ala. 2012). Specifically,

"peace officers are afforded immunity by Ala. Code 1975, § 6-5-338(a), and the test for State-agent immunity set forth in Ex parte Cranman, 792 So.2d 392 (Ala. 2000), as modified in Hollis v. City of Brighton, 950 So.2d 300 (Ala. 2006) (incorporating the peace-officer-immunity standard provided in § 6-5-338(a) into the State-agent-immunity analysis found in Cranman ).... Under that formulation,
" ' "[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
" ' "....
" ' "(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, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code 1975." '
" Hollis, 950 So.2d at 309 (quoting and modifying Cranman, 792 So.2d at 405 ). In certain circumstances, a peace officer is not entitled to such immunity from an action seeking liability in his or her individual 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 governmental 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.'
" Cranman, 792 So.2d at 405."

Suttles v. Roy, 75 So.3d 90, 94 (Ala. 2010) (emphasis omitted).

"A State agent asserting State-agent immunity 'bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity.' [Ex parte Estate of Reynolds,] 946 So.2d [450,] 452 [ (Ala. 2006) ]. Should the State agent make such a showing, the burden then shifts to the plaintiff to show that one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable."

Ex parte Kennedy, 992 So.2d 1276, 1282-83 (Ala. 2008) ; see also Wilson, 880 So.2d at 1111 (noting that, when the burden at summary-judgment stage has shifted to the nonmovant, the nonmovant must present "substantial evidence from which a reasonable juror could infer" the existence of the fact at issue).

In order to establish that Frank's claims arose from a function that would entitle Shavers to State-agent immunity, Shavers and the City were required to "establish (1) that [Shavers was a] peace officer[ ] (2) performing law-enforcement duties at the time of the accident and (3) exercising judgment and discretion." Ex parte City of Homewood, 231 So.3d 1082, 1087 (Ala. 2017).

It is undisputed that Shavers was a police officer employed by the City and that she was performing a law-enforcement duty -- responding to an emergency dispatch -- at the time of the collision. Indeed, Frank alleged in her complaint that Shavers was acting within the line and scope of her employment with the City "at all times material to this suit." Also, in Frank's brief in support of her opposition to the motion for a summary judgment, Frank conceded that "Shavers had the discretion to proceed through the intersection against a red light." An act that requires discretion has been defined as one "requiring exercise in judgment and choice and involving what is just and proper under the circumstances." Wright v. Wynn, 682 So.2d 1, 2 (Ala. 1996). Nevertheless, according to Frank, Shavers and the City failed to establish that Shavers was entitled to State-agent immunity because she purportedly failed to comply with § 32-5A-7, Ala. Code 1975. Section 32-5A-7 provides:

"(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law ..., may exercise the privileges set forth in this section, but subject to the conditions herein stated.
"(b) The driver of an authorized emergency vehicle may:
"....
"(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
"....
"(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of Section 32-5-213[, Ala. Code 1975,][ ] and visual requirements of any laws of this state requiring visual signals on emergency vehicles.
"(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."

Frank concedes that Shavers activated the emergency lights and siren of her patrol car, but Frank contends that Shavers did not "slow[ ] down as may be necessary for safe operation." § 32-5A-7(b)(2). Frank further argues that Shavers did not drive her patrol car with "due regard for the safety of all persons," § 32-5A-7(d), when she proceeded into the intersection. Specifically, Frank contends that Shavers did not allow a reasonable amount of time for traffic to clear the intersection and that Shavers did not slow down before entering Frank's lane.

Frank's argument construes § 32-5A-7 too broadly, effectively urging this Court to adopt a negligence exception to State-agent immunity in conjunction with that section. As this Court has previously stated, where a police officer is responding to an emergency call,

"the immunity afforded the peace officer ... is subject to, and limited by, the conditions imposed by § 32-5A-7. In the particular settings described by § 32-5A-7(a), the legislature has acted to restrain the manner in which the driver of the emergency vehicle may exercise his or her discretion and judgment.
"In Williams [v. Crook, 741 So.2d 1074 (Ala. 1999) ], a municipal police officer responding to a domestic-disturbance call on a rainy night elected to exceed the speed limit but not to turn on his patrol car's flashing blue lights and siren. 741 So.2d at 1075. A vehicular collision occurred, and the officer and the municipality by whom he was employed were sued. The trial court entered a summary judgment for the officer and the municipality, under § 6-5-338, based on the officer's explanation that he had exercised his discretion in deciding not to use his emergency signals 'because he was concerned that using them might alert anyone at the site of the domestic disturbance to the imminent arrival of the police and that anyone seeking to evade the police might thus have an opportunity to flee.' 741 So.2d at 1075. This Court reversed the summary judgment, agreeing that § 32-5A-7 gave the officer discretion to drive at a speed in excess of the speed limit but determining that, under the language of that statute, the officer did not have the discretion to exceed the speed limit without using his emergency signals. Section 32-5A-7(c) expressly states that the various exemptions granted an authorized emergency vehicle by that Code section would apply only when the vehicle is using acceptable audible and visual signals. 'Although [the officer] did have the discretion to decide whether he would drive in excess of the speed limit, once he made that decision he did not have the discretion to further decide whether he would comply with the audible- and visual-signal requirements of § 32-5A-7(c).' 741 So.2d at 1077.
"As noted, § 32-5A-7 not only authorizes the driver of an emergency vehicle to exercise the various privileges set forth in the statute, including exceeding the maximum speed limit when using acceptable audible and visual signals, it also provides specifically that the driver of the emergency vehicle exceeding the maximum speed limit may do so 'so long as he does not endanger life or property.' Section 32-5A-7(b)(3). Subsection (a) states that exercise of any of the privileges set forth in the statute is 'subject to the conditions herein stated.' Subsection (d) concludes the statement of privileges with the declaration that they 'shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard to the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.' Obviously, the conditions imposed by subsections (b)(3) and (d) differ in degree from the audible-and visual-signals condition of subsection (c), in that the latter is an objectively 'absolute' restriction whereas the others are subjectively 'relative' restrictions. Nonetheless, the legislature saw fit to impose the restrictions in subsections (b)(3) and (d), and it is our obligation to determine the scope of those subsections and apply them to the facts of this case. We reject the argument made by Conner and the City in their brief to this Court that the actual speed at which Conner was traveling is 'irrelevant,' although we agree that it is within a police officer's discretion to drive at a speed in excess of the speed limit when driving an authorized emergency vehicle on an emergency run because the legislature has clearly provided that the officer may do so. Williams, 741 So.2d at 1077. The legislature has simultaneously declared, however, that an officer may do so only 'so long as he does not endanger life or property' and has further conditioned the exercise of that privilege by recognizing the officer's continuing 'duty to drive with due regard for the safety of all of the persons,' removing the protection of the privilege if the officer drives with 'reckless disregard for the safety of others.' "

Blackwood v. City of Hanceville, 936 So.2d 495, 505-07 (Ala. 2006) (emphasis added).

When Frank's vehicle collided with Shavers's patrol car, Shavers was responding to an emergency dispatch, clearly satisfying the requirement of § 32-5A-7(a). Having satisfied that requirement, Shavers had the right to "proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation." § 32-5A-7(b)(2). As clearly shown in the dashboard-camera video, after activating the emergency lights and siren on her patrol car, and starting from a complete stop, Shavers's patrol car slowly proceeded into the intersection. Shavers was not required to further slow her patrol car when entering each lane and crossing the intersection in order to satisfy the requirements of § 32-5A-7(b)(2). See also § 32-5A-7(c). Also, we note that, after Shavers activated her emergency lights and siren, there was a sufficient amount of time for two northbound lanes of traffic to stop before Shavers's patrol car entered the intersection. Thus, although Frank correctly notes that Shavers was required to satisfy the requirements of § 32-5A-7(a), (b)(2), and (c), she is incorrect in arguing that Shavers did not satisfy those requirements.

Relying on § 32-5A-7(d), Frank further argues that a material issue of fact exists as to whether Shavers acted "with due regard for the safety" of others. As to that issue, we must view the evidentiary submissions presented to the circuit court in the light most favorable to Frank, the nonmoving party. See Ex parte Rizk, 791 So.2d 911, 912 (Ala. 2000). Frank states in her answer to the petition that "[t]he clear evidence indicates that Shavers operated her lights and sirens for a mere 5 seconds." Frank then concludes that this is "substantial evidence that disputes the City and Shavers's version of facts and provides evidence upon which a reasonable jury could return a verdict for Frank." Frank's conclusion as to the facts, however, is not the same as the facts themselves; more importantly, the evidence submitted by the parties -- particularly the dashboard-camera video -- contradicts both Frank's factual assertions and her conclusion as to the reasonableness of Shavers's actions. Before discussing those matters, however, we take this opportunity to note the importance of the dashboard-camera video.

The United States Supreme Court has noted that, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In Scott, Victor Harris was being pursued in a high-speed chase by Deputy Timothy Scott.

"Six minutes and nearly 10 miles after the chase had begun, Scott decided to attempt to terminate the episode by employing a 'Precision Intervention Technique ("PIT") maneuver, which causes the fleeing vehicle to spin to a stop.' Brief for Petitioner 4. Having radioed his supervisor for permission, Scott was told to ' "[g]o ahead and take him out." ' Harris v. Coweta Cty., 433 F.3d 807, 811 (C.A.11 2005). Instead, Scott applied his push bumper to the rear of [Harris's] vehicle [because Scott concluded that the PIT maneuver could not be executed safely]. As a result, [Harris] lost control of his vehicle, which left the roadway, ran down an embankment, overturned, and crashed. [Harris] was badly injured and was rendered a quadriplegic.
"[Harris] filed suit against Deputy Scott and others under Rev. Stat. § 1979, 42 U.S.C. § 1983, alleging, inter alia, a violation of his federal constitutional rights, viz. use of excessive force resulting in an unreasonable seizure under the Fourth Amendment. In response, Scott filed a motion for summary judgment based on an assertion of qualified immunity. The District Court denied the motion, finding that 'there are material issues of fact on which the issue of qualified immunity turns which present sufficient disagreement to require submission to a jury.' Harris v. Coweta Cty., No. 3:01-CV-148-WBH, ... (N.D. Ga. Sept. 23, 2003), App. to Pet. for Cert. 41a-42a. On interlocutory appeal, the United States Court of Appeals for the Eleventh Circuit affirmed the District Court's decision to allow [Harris's] Fourth Amendment claim against Scott to proceed to trial. Taking [Harris's] view of the facts as given, the Court of Appeals concluded that Scott's actions could constitute 'deadly force' under Tennessee v. Garner, 471 U.S. 1 [105 S.Ct. 1694, 85 L.Ed.2d 1] (1985), and that the use of such force in this context 'would violate [Harris's] constitutional right to be free from excessive force during a seizure. Accordingly, a reasonable jury could find that Scott violated [Harris's] Fourth Amendment rights.' 433 F.3d at 816. The Court of Appeals further concluded that 'the law as it existed [at the time of the incident], was sufficiently clear to give reasonable law enforcement officers "fair notice" that ramming a vehicle under these circumstances was unlawful.' Id., at 817. The Court of Appeals thus concluded that Scott was not entitled to qualified immunity."

550 U.S. at 375-76, 127 S.Ct. 1769 (emphasis omitted; footnotes omitted).

In reversing the decision of the United States Court of Appeals for the Eleventh Circuit, the Supreme Court stated:

"The first step in assessing the constitutionality of Scott's actions is to determine the relevant facts. As this case was decided on summary judgment, there have not yet been factual findings by a judge or jury, and [Harris's] version of events (unsurprisingly) differs substantially from Scott's version. When things are in such a posture, courts are required to view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the [summary judgment] motion.' United States v. Diebold, Inc., 369 U.S. 654, 655 [82 S.Ct. 993, 8 L.Ed.2d 176] (1962) (per curiam); Saucier [v. Katz ], [533 U.S. 194,] 201 [121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ]. In qualified immunity cases, this usually means adopting (as the Court of Appeals did here) the plaintiff's version of the facts.
"There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. There are no allegations or indications that this videotape was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened. The videotape quite clearly contradicts the version of the story told by [Harris] and adopted by the Court of Appeals....
"....
"... When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
"That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. [Harris's] version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape."

550 U.S. at 378-81, 127 S.Ct. 1769 (footnotes omitted).

As in Scott, Shavers's dashboard-camera video depicts a different story than the story Frank suggests. For example, in her complaint, Frank alleges that, as she "drove into the intersection of East Boulevard and Hitching Post Lane, her vehicle was violently struck by Shavers's patrol car." In light of the video of the collision and the respective speeds at which Frank's vehicle and Shavers's patrol car were traveling, however, Frank's allegation is patently false. Likewise, Frank repeatedly states that there was only a five-second interval between Shavers's activation of her patrol car's emergency lights and siren and the collision. That simply is not the case. The dashboard-camera video depicts the following: Shavers activated her emergency lights; three to four seconds later Shavers activated her siren; approximately five seconds after Shaver activated her siren Frank's vehicle collided with the patrol car. In the interim, the dashboard-camera video reflects Shavers's patrol car slowly proceeding into the intersection with both the emergency lights and siren activated. And Shavers's patrol car entered the intersection only after the traffic in the intersection had cleared and the vehicles in the two lanes closest to Shavers's patrol car had stopped. In other words, the dashboard-camera video eliminates any reasonable contention that Shavers was driving without "due regard for the safety" of others or, more to the point, with "reckless disregard for the safety of others."

Frank attempts to construe this Court's rationale in Blackwood as supporting her argument. But Frank's argument fails to account for two important distinctions. First, Blackwood was decided before Hollis v. City of Brighton, 950 So.2d 300 (Ala. 2006), in which this Court expressly "expanded"

category four of Cranman "so as to reflect § 6-5-338(a)." 950 So.2d at 309. Second, this Court emphasized the "unique evidentiary record" presented in Blackwood, 936 So.2d at 507. The evidence at issue in Blackwood established not merely that the conduct of the police officer at issue was "unreasonable" but that the conduct was so "unsafe" as to create a material issue of fact as to whether the officer had acted with "reckless disregard for the safety of others" in violation of § 32-5A-7(d). 936 So.2d at 507 ("[A]ssuming ... [Officer Steven] Conner was traveling at a minimum speed of 91 miles per hour while approaching the dangerous Johnson's Crossing intersection, he would be charged with notice that he was driving in a manner that endangered life or property and represented a reckless disregard for the safety of others." (emphasis omitted) ). No such unique evidentiary record is before us in the present case. Based on the dashboard-camera video, no reasonable juror could conclude that Shavers was acting with "reckless disregard for the safety" of others, even if a juror might conclude Shavers's conduct was negligent.

For similar reasons, we must reject Frank's argument that Shavers is not entitled to immunity because of the application of § 32-5A-115, Ala. Code 1975. Section 32-5A-115 states:

"(a) Upon the immediate approach of an authorized emergency vehicle equipped with at least one lighted lamp and audible signal as is required by law, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
"(b) This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with regard for the safety of all persons using the highways.
"(c) Authorized emergency vehicles shall be equipped with at least one lighted lamp exhibiting a colored light as hereinafter provided visible under normal atmospheric conditions from a distance of 500 feet to the front of such vehicle and a siren, exhaust whistle, or bell capable of giving an audible signal.... This provision shall not operate to relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway nor shall it protect the driver of any such vehicle from the consequences of an arbitrary exercise of such right-of-way."

According to Frank, "Shavers did not comply with the provisions of [§] 32-5A-115(c) when she arbitrarily exercised right-of-way to such a degree that she failed to operate her emergency vehicle with due regard for the safety of all persons." Answer to Petition, at p. 11.

Frank's argument as to § 32-5A-115 would collapse paragraphs (b) and (c) of that section so as to impose a negligence standard when a police officer uses his or her discretion in exercising the right-of-way. In other words, like Frank's argument as to the application of § 32-5A-7, Frank would have this Court construe a police officer's general "duty to drive with [due] regard for the safety of all persons,"

§ 32-5A-115(c), so as to effectively adopt a negligence exception to State-agent immunity. However, just as this Court declined to read similar language in the first clause of § 32-5A-7(d) as imposing a negligence standard in Blackwood -- noting that immunity was available unless "the officer drives with 'reckless disregard for the safety of others,' " 936 So.2d at 507 (quoting the last clause of § 32-5A-7(d) ) -- we reject Frank's argument that the language of § 32-5A-115 should be read as imposing such a negligence standard. A police officer using the emergency lights and siren on his or her patrol car is entitled to immunity as to his or her discretionary decisions in exercising the right-of-way, unless such actions constitute "an arbitrary exercise of such right-of-way." § 32-5A-115(d). To conclude otherwise would deprive a police officer of the benefit of State-agent immunity in conjunction with § 6-5-338(a) (providing that a police officer "shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties").

Based on the foregoing, we conclude that Shavers and the City satisfied their initial burden of establishing that Frank's claims arose from a function that entitled Shavers to State-agent immunity. Accordingly, the burden shifted to Frank to demonstrate by substantial evidence that Shavers's actions fell within one of the exceptions to State-agent immunity. See Kennedy and Hobson, supra.

On appeal, Frank attempts to argue that her claims fall within the first Cranman exception to State-agent immunity, which provides that a State agent shall not be immune from liability in his or her individual 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 governmental agency require otherwise." Cranman, 792 So.2d at 405. But, exception one does not apply in this case. Section 32-5A-7 and § 32-5A-115 are directed at any operator of an emergency vehicle. Those sections do not purport to "regulate[ ] the activities of a governmental agency." Cranman, 792 So.2d at 405.

As for the second Cranman exception, which provides that a State agent shall not be immune from liability in his or her individual capacity "(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," id., Frank argues that Shavers acted beyond her authority because she allegedly did not allow enough time to properly clear the intersection, in direct violation of her police training. As noted above, Shavers admitted in her deposition that the City had concluded she was "at fault" for the collision. Likewise, Shavers admitted that she had violated her police training by entering the third lane of the intersection without knowing that the traffic in that lane had stopped. Shavers further conceded that five seconds was not a reasonable amount of time in which to clear the intersection, though she was unclear whether her response time was limited to five seconds. As noted above, Shavers's total response time was longer than five seconds. But, regardless of those admissions, Shavers was engaged in a discretionary act (proceeding through an intersection while responding to an emergency dispatch) that is regularly performed by police officers who are carrying out their law-enforcement duties. Even assuming Shavers violated her police training while exercising her discretion, she did not act beyond her authority in attempting to slowly proceed through an intersection, with the emergency lights and siren activated on her patrol car, in response to an emergency dispatch.

Also, Frank's claims against Shavers and the City are based on Shavers's alleged negligent or wanton conduct.

"This Court has previously held that poor judgment or wanton misconduct, an aggravated form of negligence, does not rise to the level of willfulness and maliciousness necessary to put the State agent beyond the immunity recognized in Cranman. See Giambrone [v. Douglas], 874 So.2d [1046,] 1057 [ (Ala. 2003) ] (holding that State-agent immunity 'is not abrogated for negligent and wanton behavior; instead, immunity is withheld only upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority')."

Ex parte Randall, 971 So.2d 652, 664 (Ala. 2007). " ' "Reasonableness" is not the standard by which discretionary immunity [now called State-agent immunity] is reviewed. The standard to be applied is not a "reasonable" one, but, rather, whether the defendant acted in bad faith or with malice or willfulness.' " Hollis, 950 So.2d at 306 (quoting the City of Brighton's brief, citing Ex parte Davis, 721 So.2d 685 (Ala. 1998) ); see also Hollis, 950 So.2d at 306 ("Admittedly, if Officer Davis does not have immunity, the reasonableness of [his] order becomes the issue. However, if Officer Davis does have immunity, the reasonableness of [his] order is not at issue."). Likewise, negligent or wanton conduct will not support the conclusion that a police officer has acted beyond his or her authority when he or she is exercising discretion in the discharge of his or her law-enforcement duties. As this Court has recently stated: "In Taylor v. Shoemaker, 605 So.2d 828 (Ala. 1992), cited with approval in Cranman, the Court noted that the holding in Elmore v. Fields [, 153 Ala. 345, 45 So. 66, 67 (1907),] that the commission of a tort constituted acting beyond authority, ha[s] subsequently been very clearly rejected." Ex parte Utilities Bd. of City of Foley, 265 So. 3d 1273, 1283 (Ala. 2018).

Based on the foregoing, Shavers established that she was performing a function that entitled her to State-agent immunity under Cranman, and Frank failed to present substantial evidence to create a genuine issue of material fact as to whether Shavers's actions fell within one of the exceptions to State-agent immunity. Accordingly, Shavers was entitled to a summary judgment as to Frank's claims against her in her individual capacity.

As noted above, Frank also named Shavers as a defendant in her official capacity. However, Frank may not prosecute a claim for money damages against Shavers in her official capacity. See § 6-5-338(a) (noting that a municipal police officer is an "officer of this state"); Ex parte Moulton, 116 So.3d 1119, 1140 (Ala. 2013) ("[A]ctions for damages against State agents in their official or representative capacities are considered actions to recover money from the State and are barred by State immunity under § 14[, Ala. Const. 1901]."); see also, e.g., Ex parte Alabama Peace Officers' Standards & Training Comm'n, 34 So.3d 1248, 1253 (Ala. 2009) (directing trial court to dismiss official-capacity claims, because, based on State immunity, the trial court acquired no subject-matter jurisdiction); Ex parte Burnell, 90 So.3d 708 (Ala. 2012) (holding claims for monetary damages barred by the doctrine of State immunity). Thus, Shavers was also entitled to a summary judgment as to Frank's official-capacity claims.

As for Frank's vicarious-liability claims against the City, because Shavers is entitled to immunity, the City is entitled to the benefit of Shavers's immunity. See, e.g., City of Bayou La Batre v. Robinson, 785 So.2d 1128, 1131 (Ala. 2000) (affirming the Court's previous holding that, "under principles of vicarious liability, where a municipal employee enjoys immunity, the municipality likewise is immune as to claims based on the employee's conduct"); Hollis, 950 So.2d at 306 ("[I]f Officer Davis is immune, then so is the City, which employed him.").

Based on the foregoing, Shavers and the City have demonstrated that the circuit court exceeded its discretion in denying their joint motion for a summary judgment. See Ex parte Hartford Ins. Co., 394 So.2d 933, 936 (Ala. 1981).

IV. Conclusion

Shavers and the City's petition for a writ of mandamus is due to be granted. We direct the Montgomery Circuit Court to vacate its order denying Shavers and the City's joint motion for a summary judgment and to enter an order granting that motion.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Main, Wise, Bryan, and Sellers, JJ., concur.

Parker, J., dissents.

      Although Cranman was a plurality decision, the restatement of law as it pertains to State-agent immunity set forth in Cranman was subsequently adopted by this Court in Ex parte Butts, 775 So.2d 173 (Ala. 2000).

      Section 32-5-213 describes the siren requirements for ambulances and police and fire-department vehicles.

      We recognize that § 32-5A-115(a) places a duty on the driving public, not the operator of an emergency vehicle, to yield the right-of-way to an authorized emergency vehicle using its emergency lights and siren. The duties of the operator of an emergency vehicle under § 32-5A-115(b) and (c) must be read in that context.

      Frank argues that Shavers was "operating her vehicle in direct contravention of the law, in direct violation of the rules, regulations, policies and procedures provided to her while being trained by the Montgomery Police Department." Frank's brief, at p. 20. However, except for § 32-5A-7 and § 32-5A-115, Frank submitted no "enacted or promulgated" law, rule, or regulation "of this State" that Shavers was required to follow.

      This Court has stated:
      " ' "Willfulness" is the conscious doing of some act or omission of some duty under knowledge of existing conditions accompanied with a design or purpose to inflict injury.' Instruction 29.01, Alabama Pattern Jury Instructions-Civil (2d ed. 1993); see also Roe v. Lewis, 416 So.2d 750, 754 (Ala. 1982) (willfulness 'denotes an intention to cause an injury'). Similarly, malice is defined as '[t]he intent, without justification or excuse, to commit a wrongful act....' Black's Law Dictionary, 968 (7th ed. 1999)."
      Ex parte Nall, 879 So.2d 541, 546 (Ala. 2003). The materials before us contain no evidence that would support the conclusion that Shavers acted willfully or maliciously. Additionally, there is no evidence indicating that Shavers acted fraudulently, in bad faith, or under a mistaken interpretation of law.