IN THE CIRCUIT COURT OF MORGAN COUNTY, ALABAMA

LOPER ROSE MARIE, )

Plaintiff, )
)
V. ) Case No.: CV-2022-900030.00
)
CITY OF DECATUR, ALABAMA, A
)
MUNICIPAL CORPORATION,
Defendant. )

ORDER ON SUMMARY JUDGMENT

This case came before the Court on January 10, 2024 for a hearing on the Motion for Summary
Judgment filed by the Defendant (Doc. 56). Michael Timberlake and Bobby Marsh appeared for the
Plaintiff; Jack Bains appeared for the Defendant. The matter proceeded to a hearing and the
attorneys offered argument to the Court. Thereafter, the Court took the matter under advisement
pending issuance of a written order. The Court has considered the pleadings, arguments, and
applicable law.

Undisputed Facts
On or about February 16, 2020, Plaintiff Rose Marie Loper was walking on the sidewalk along 4 th
Avenue SE at or near its intersection with Johnston Street in Decatur, Morgan County, Alabama,
when she fell. The sidewalk was owned and controlled by the City of Decatur. (Kirby Depo., p. 47-
48). The Plaintiff used the sidewalk to walk to church, as church parking was along the street.
(Loper Depo., p.19, 21-22). The Plaintiff asserts that her fall was caused by a defect in the sidewalk.
(Complaint at ¶5). It is undisputed that the Plaintiff tripped over an area of concrete sidewalk that
had lifted up or raised relative to the piece of concrete sidewalk she had been walking over. At
deposition, the Plaintiff recalled: “I tripped. I was looking forward to where I was going and I did
not see anything, you know, any obstruction in the pavement. And my toe hit that and down I went.”
(Loper Depo., p. 36). In looking ahead of where she was walking, she did not see any kinds of
problems, cracks, or defects. (Loper Depo., p. 37). Though she was looking, the Plaintiff never saw
what caused her to trip. (Loper Depo., pp. 80-81). After her fall and gathering herself, she realized
that she caught her toe on the sidewalk. (Loper Depo., p. 39-40). She described it as an uneven place
in the sidewalk, but she had no opinion as to how high the discrepancy in the concrete was. (Loper

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Depo., p.40). The Plaintiff contends that as a proximate result of her fall, her hip was fractured and
she was caused serious and permanent injury.

The section of sidewalk where the Plaintiff fell was an old section of sidewalk, and not recently
poured. Shane Kirby testified that he has been an employee of the City of Decatur for 25 years.
(Kirby Depo., p.8). He currently serves as the Manager of the Street Department. (Kirby Depo., p.
7). He testified at deposition that he was not aware of any incidents or accidents or problems with
the area of sidewalk along 4 th Avenue SE prior to the Plaintiff’s fall. (Kirby Depo., p. 13). There
were no prior work orders for the concrete in the area where the Plaintiff fell. (Kirby Depo., p. 57).
It is undisputed that there was never any actual notice about this particular sidewalk defect. There is
no set process for ongoing inspection for the over 140 miles of mapped sidewalks or for the
additional miles of unmapped sidewalks in the City of Decatur. (Kirby Depo., pp. 13-14, p. 48).
Upon notice after the Plaintiff’s fall, Kirby inspected the sidewalk and found that a portion had been
raised ½ inch, which Kirby described as a “very small lip.” (Kirby Depo., p . 22-24).

The parties agree that, at one time, a magnolia tree grew on private property near the section of
sidewalk at issue. Kirby testified that he believed that the roots of the tree grew under the sidewalk.
(Kirby Depo. pp. 22-23). The Plaintiff’s husband testified by affidavit that the tree was removed in
2016 and that the stump was immediately ground up and removed. (Ex. E to Plaintiff’s Brief and
Evidentiary Filing in Opposition to Defendant’s Summary Judgment Motion). It appears to be an
undisputed assumption that the City of Decatur was not responsible for the tree removal. (Kirby
Depo. p. 52). Kirby testified that the “roots were the problem.” (Kirby Depo. p. 34).

Applicable Law
The law regarding summary judgment is well established. A motion for summary judgment tests the
sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. Sizemore v. Owner-Operator Indep. Drivers Ass'n, Inc., 671 So. 2d 674, 675 (Ala.
Civ. App. 1995). At summary judgment, the moving party bears the initial burden of establishing the
absence of a genuine issue of material fact. Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122;
Travis v. Ziter, 681 So.2d 1348, 1351 (Ala.1996). “[The] party seeking summary judgment always
bears the initial responsibility of … ‘identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any,’ which it believes

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demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323; 106 S.Ct. 2548, 2553 (1986). The moving party can satisfy its initial burden “either by
submitting affirmative evidence that negates an essential element in the non-moving party’s] claim or
… by demonstrating …that the [non-moving party’s] evidence is insufficient to establish an essential
element of the [non-moving party’s] claim.” Ex parte General Motors, 769 So.2d 903, 909 (Ala.
1999)(quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989). Once the Defendants make a
prima facie showing that the Plaintiff’s allegations are unsubstantiated and that the Defendant is
entitled to judgment as a matter of law, the burden of proof shifts to the Plaintiff to present
“substantial evidence” in support of each element of the disputed cause of action. See Hanners v.
Balfour Gutherie, Inc., 564 So.2d 412, 413 (Ala.1990); and Bass v. SouthTrust Bank of Baldwin
County, 538 So.2d 794, 797–98 (Ala.1989). The nonmoving party may not rest on the mere
allegations or denial in the original pleadings but must set forth, by affidavit or otherwise,
substantial, admissible facts showing a genuine issue of material fact. Whatley v. Cardinal Pest
Control, 388 So. 2d 529, 532-533 (Ala. 1980); see also Ex parte LeFleur, 329 So. 3d 613, 624 (Ala.
2020). The Supreme Court of Alabama has defined substantial evidence as “evidence of such weight
and quality that the 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); Wright v. Wright, 654 So.2d 542, 543 (Ala. 1995); Peters v. Calhoun
County Comm’n, 669 So.2d 847, 851 (Ala.1995); also see Ala.Code §12-21-12(d) (1975). The court
must view evidence in the light most favorable to the nonmoving party and resolve all reasonable
factual doubts in favor of the nonmoving party. System Dynamics Int'l, Inc. v. Boykin, 683 So.2d 419
(Ala.1996). The Court may draw such reasonable inference from the evidence as the jury would be
free to draw.” Springer v. Jefferson County, 595 So.2d 1381, 1383 (Ala.1992). A summary judgment
is not proper if conflicting inferences can be drawn from the evidence. Van Prewitt v. Mobile
Policemen’s and Firefighters’ Pension and Relief Fund Board, et. al., 664 So.2d 223, 224
(Ala.Civ.App. 1994).

Issue Analysis
The Defendant asserts that it is entitled to summary judgment, as there are no genuine issues as to
any material fact in controversy. The City claims that it is immune from damages. Section 11-47-
190, Code of Alabama (1975), provides as follows:
No city or town shall be liable for damages for injury done to or wrong suffered by
any person or corporation, unless such injury or wrong was done or suffered through
the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the

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 municipality engaged in work therefor and while acting in the line of his or her duty,
or unless the said injury or wrong was done or suffered through the neglect or
carelessness or failure to remedy some defect in the streets, alleys, public ways, or
buildings after the same had been called to the attention of the council or other
governing body or after the same had existed for such an unreasonable length of
time as to raise a presumption of knowledge of such defect on the part of the
council or other governing body and whenever the city or town shall be made liable
for damages by reason of the unauthorized or wrongful acts or negligence,
carelessness, or unskillfulness of any person or corporation, then such person or
corporation shall be liable to an action on the same account by the party so injured.
However, no recovery may be had under any judgment or combination of judgments,
whether direct or by way of indemnity under Section 11-47-24, or otherwise, arising
out of a single occurrence, against a municipality, and/or any officer or officers, or
employee or employees, or agents thereof, in excess of a total $100,000 per injured
person up to a maximum of $300,000 per single occurrence, the limits set out in the
provisions of Section 11-93-2 notwithstanding. (Emphasis added)

A city owes a duty to “exercise ordinary and reasonable care to keep its streets and sidewalks in a
reasonably safe condition for travel.” Jacks v. City of Birmingham, 105 So.2d 121, 125 (1958).
“Travelers on streets and sidewalks have a right to assume that the passage is safe for travel and no
duty is imposed to keep a vigilant watch for unknown defects and obstructions which cannot be
observed by the use of ordinary care. But such assumption only protects those who are in the exercise
of such ordinary care at the time as the situation on the whole would lead a reasonably prudent man
to observe in respect to conditions immediately ahead.” Jacks v. City of Birmingham, 268 Ala. 138,
144, 105 So. 2d 121, 127 (1958), internal citations removed. The law of Alabama is clear that a
municipality has a duty to remedy defects upon the receipt of actual or constructive notice. City of
Prichard v. Kelley, 386 So.2d 403 (Ala.1980). Constructive notice may be established by a showing
that the defective condition has remained for such length of time and under such conditions and
circumstances that the law will infer that the defect ought to have been discovered and remedied.
Jacks v. City of Birmingham, 105 So.2d 121 (1958). A city must remedy defects upon receiving
actual notice, or after the same has remained for such a length of time and under such conditions and
circumstances that the law will infer that the defect ought to have been discovered and remedied.
Id., City of Florence v Stack, 155 So.2d 324 (1963). The city does not have a duty to inspect or to
seek out defective conditions and rectify them. Slade v. City of Montgomery, 577 So.2d 887
(Ala.1991).

There is no evidence of actual notice; this is a case of constructive notice. The pivotal issue, as
succinctly stated by the Plaintiff in her Brief and Evidentiary Filing in Opposition to Defendant’s
Summary Judgment Motion (Doc. 75) is whether there is a question of fact for a jury to determine if

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the defect in the sidewalk resulting in Plaintiff’s injury existed for a length of time that legally placed
the City of Decatur on constructive notice of the hazard. The Defendant contends that there is no
such evidence. The Defendant provides testimony of two witnesses who have observed the subject
sidewalk area over time. Jon Aldridge, a member of LifePoint Church, signed an affidavit stating
that he regularly helped with grounds maintenance at LifePoint Church and that (1) he was familiar
with the area where the Plaintiff fell and (2) to the best of his knowledge, no one at the church had
ever communicated any defect, hazard or danger of the sidewalk on which Plaintiff fell prior to her
actually falling and that he was confident that in his position, he had not communicated any
information to the City advising of any danger, defect, or hazard of the sidewalk prior to the fall.
The church pastor, Johnathan Evans, offered testimony by affidavit that he did not see the fall but
was very familiar with the area and that, while there were height incongruities with sidewalks
adjacent to the church, none “exceeded something normally expected or that were different from any
other sidewalks in the city with which [he was] familiar.” 1 Further, Pastor Evans had never had other
congregants complain of dangers, defects, or hazards of the sidewalk so as to warrant a report to the
City.

The Plaintiff asserts that the constructive notice is evident because of the tree which had been cut in
2016. Plaintiff’s witnesses testify that the tree was cut in 2016 and that the stump was immediately
ground down. However, no witness can offer testimony about when the sidewalk defect occurred.
No witness can say whether the defect occurred when the root grew under the sidewalk (forcing the
slab upward as it grew), or whether the defect occurred after the root rotted (resulting in a shift of the
slab downward). But even if the length of time of the defect was known, the Plaintiff must prove
constructive notice by “a showing that the defective condition has remained for such length of time
and under such conditions and circumstances that the law will infer that the defect ought to have
been discovered and remedied.” Jacks v City of Birmingham, supra. This sidewalk is used every
Sunday by people going to and from the church and there was never a complaint about the defect –
nothing that caused enough concern to call the City of Decatur. Though it is true that the ½” drop
was ¼” more than the “trip hazard” standard set by the Americans with Disabilities Act, there is
simply no evidence of any circumstances or conditions which would have caused the Defendant to
infer that the defect existed, nor any evidence other than speculation as to when the height disparity
first occurred. There is no actual or circumstantial evidence upon which a finder of fact could reach

1
The Plaintiff has moved to strike the Affidavit of Johnathan Evans (Doc. 83), arguing that Mr. Evans’ opinion is in
the nature of an expert opinion which he is not qualified to provide. The motion is DENIED, as the statements of
Mr. Evans simply describe his personal observation of the sidewalk heights in his opinion.

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a conclusion that the height differential existed so long as to establish constructive notice of the
defect.

It is, therefore, ORDERED, ADJUDGED, and DECREED by the Court as follows:

1. The Defendant’s Motion for Summary Judgment is GRANTED.
2. A judgment is rendered in favor of the Defendant, City of Decatur, and against the Plaintiff,
Rose Marie Loper, on her claims in this case as set forth in the Complaint. Those claims are
dismissed with prejudice.
3. This Order disposes of all claims and issues in this case and will be entered as a final
judgment, as the Court expressly finds there is no just reason for delay.
4. Costs are taxed to the Plaintiff.

The Clerk is directed to provide a copy of this Order to the parties and any attorneys of record.

DONE this 12th day of March, 2024.

/s/ JENNIFER M. HOWELL

CIRCUIT JUDGE

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