Rogers, etc. v. Cedar Bluff Volunteer Fire Department, [Ms. SC-2025-0055, Aug. 29, 2025] __ So. 3d __ (Ala. 2025). The Court (Cook, J.; Stewart, C.J., and Shaw, Wise, Sellers, McCool, and Lewis, JJ., concur; Bryan and Mendheim, JJ., concur in the result) affirms the Cherokee Circuit Court’s summary judgment dismissing a wrongful death suit against the Town of Cedar Bluff. Susan Bonner died as a result of her vehicle leaving the highway and landing in a creek. The administrator of Susan’s estate sued the Cedar Bluff Volunteer Fire Department (“the CBVFD”) alleging it was vicariously liable for the actions of its off-duty volunteer fireman, Howard Guice, who advised a bystander to discontinue CPR. Ms. **3-4. When paramedics arrived several minutes later, they detected a pulse and revived Susan, but she later died of an anoxic brain injury.
The Court first concludes that the Town did not waive its immunity defense by failing to timely raise it and explains, “... a municipal-immunity defense is not waived as long as it is asserted by a defendant at some point before a judgment is entered.” Ms. *21, citing Marlow v. Mid South Tool Co., 535 So. 2d 120 (Ala. 1988). The Court also rejects the Estate’s argument that the CBVFD was a non-profit entity separate from the Town of Cedar Bluff and does not enjoy vicarious immunity under the Volunteer Service Act (“VSA”). The Court explains that while “the VSA grants immunity to natural persons serving as volunteers for certain entities, … [i]t expressly states that certain entities are not entitled to such immunity, including nonprofit organizations, nonprofit corporations, and hospitals. See § 6-5-336(e)… In contrast, the VSA does not include such an express exception to immunity for ‘governmental entities’ like the Town.” Ms. *24, quoting Industrial Dev. Bd. of City of Montgomery v. Russell, 124 So. 3d 127, 136 (Ala. 2013).
Finally, the Court holds that even assuming there was substantial evidence that Guice acted wantonly and was therefore not immune under the VSA for causing Susan’s death, “the Town cannot be liable for the wanton conduct of its servant.” Ms. *30, citing Hollis v. City of Brighton, 885 So. 2d 135 (Ala. 2004) (holding “a city cannot be liable for wanton conduct” of a volunteer firefighter.)