Substantive Immunity of Municipality

City of Orange Beach v. Boles, [Ms. 1210055; 1210056, June 16, 2023] __ So. 3d __ (Ala. 2023). In a plurality opinion (Shaw, J.; Stewart, J., concurs; Shaw, concurs specially with opinion, which Mendheim, J., joins; Parker, C.J., concurs in the result, with opinion; Sellers, J., dissents, with opinion, which Wise and Bryan, JJ., join; Mitchell and Cook, JJ., recuse), the Court reverses a $3.78 million judgment entered on a jury verdict by the Baldwin Circuit Court in favor of Ian Boles (Boles) against the City of Orange Beach (the City). The main opinion concludes the City was entitled to judgment as a matter of law based on substantive immunity.

The City requires inspections of newly constructed residences before allowing connection to electrical service. As part of its standard process, the City requires completion of a form and provision of certain information (including amounts paid to subcontractors) to initiate inspections before connecting residences to electrical power. Boles filed claims alleging that “the City had a duty to perform the meter-release inspections despite his failure to provide the completed subcontractor forms and that the City was negligent in failing to conduct those inspections.” Ms. *20.

The main opinion concludes

The City’s performance of meter-release inspections, like the performance of the inspections at issue in Rich [v. City of Mobile, 410 So. 2d 385 (Ala. 1982)], Hilliard [v. City of Huntsville, 585 So. 2d 889, 889-90 (Ala. 1991)], and [Ex parte City of] Tuskegee[, 295 So. 3d 625 (Ala. 2019)] was to ‘protect the public by making sure that municipal standards are met” and “were essential to the well-being of the governed.’” Hilliard, 585 So. 2d at 892. The City’s performance of the meter-release inspections thus did not establish a legal duty to Boles. To hold that the City’s building permitting process in fact imposed a legal duty to Boles to perform the meter-release inspections, even if he was not in compliance with that process, and that the breach of that duty imposes liability would “materially thwart the City’s legitimate efforts to provide such public services.” Rich, 410 So. 2d at 387.

Ms. **20-21.

Chief Justice Parker specially concurred, writing “I cannot find any sound jurisprudential distinction between this case and our prior cases holding that municipalities were immune for negligently failing to properly conduct inspections ….” Ms. *32. Chief Justice Parker posits that “[t]he real problem – one that Boles has not briefed in this case but that this Court should take up in a future case – is that substantive immunity has been mistaken from its beginning.” Ms. *33.

Justice Sellers’s dissent, joined by Justices Wise and Bryan, asserts

…[T]he lack of a written policy requiring submission of the forms, the city’s mandate for the completed forms can be attributed only to its desire to know the amount Boles paid his subcontractors. Nothing about any amount paid to a subcontractor is related to health, much less safety or the general welfare of the city’s residents. Since the city withheld the inspections based on Boles’s failure to submit the completed form, its motivation for doing so seems wholly unconnected to public safety. Instead, the city’s purpose in withholding the inspections appears to have been chiefly aimed at “prevent[ing] a private citizen from developing [his] private property for [his] economic benefit,” Lee, 148 So. 3d at 419, unless he complied with its demands. That purpose implicates none of the policy concerns underlying substantive immunity.

Ms. **47-48.

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