Ex parte City of Birmingham PETITION FOR WRIT OF MANDAMUS (In re: Demarco Stoudmire v. City of Birmingham)
SC-2025-0591
SUPREME COURT OF ALABAMA
Rel: July 2, 2026
COOK, Justice.
Jefferson Circuit Court: CV-23-901036. SPECIAL TERM, 2026.
Eventually, Stoudmire filed suit against the City claiming negligence. The City answered his complaint by asserting, among other things, that it was entitled to municipal immunity.
After discovery, the City filed a motion for a summary judgment in which it argued that it was entitled to a judgment in its favor for two reasons. Among other things, the City argued that Stoudmire had provided no evidence indicating that it had either actual or constructive knowledge of the defect such that it would not be entitled to municipal immunity.
Stoudmire responded by pointing the trial court to an affidavit by a former city employee, a statement by a bystander to the accident, and a
Around a year later, the City renewed its motion for a summary judgment and attached a few new pieces of evidence. The City also filed a motion to strike some of Stoudmire‘s evidence. After receiving Stoudmire‘s response, the trial court struck the first responders’ patient-care report, the bystander‘s statement, and part of the former city employee‘s affidavit that Stoudmire had previously presented. It then denied the City‘s renewed summary-judgment motion.
The City has now petitioned this Court for a writ of mandamus, claiming that, with much of Stoudmire‘s evidence having been struck, the evidence that remains does not present a genuine issue of material fact as to whether the City had prior notice of the defect such that it was not entitled to municipal immunity.
For the reasons stated below, we conclude that Stoudmire‘s admissible evidence was not enough to show that a genuine issue of material fact existed as to whether the City had actual or constructive knowledge of the defect at issue and, thus, that the trial court should
Facts and Procedural History
On April 3, 2021, Stoudmire was traveling on Avenue V in Ensley, a neighborhood within the Birmingham city limits, when the motorcycle he was operating struck a defect in the road. He was thrown from the motorcycle and suffered severe injuries, including a broken collar bone and broken ribs, which required surgery.
About four months later, on August 2, 2021, he filed an “Affidavit and Notice of Claim” with the Birmingham City Clerk, purportedly notifying the City of his accident and injuries and making a claim for medical bills for the treatment of his injuries. His only description of the location of the accident was “Avenue V in Ensley.”
The City acknowledged receipt of his claim and said that it would “proceed to investigate.” On September 2, 2022, the City denied his claim.
On March 31, 2023, Stoudmire sued the City in the Jefferson Circuit Court. In his complaint, he alleged that the City had “failed to repair or remedy the defects in Avenue V” after those defects had been called to the City‘s attention.
After discovery, on April 29, 2024, the City moved for a summary judgment, arguing, among other things, that (1) Stoudmire‘s notice of claim was not specific enough to comply with the notice-of-claim statutes and (2) Stoudmire had failed to provide evidence indicating that the City had actual or constructive knowledge of the defect in the road before his accident such that it was not entitled to municipal immunity under
First, the City argued that
The City also stated that it had no actual or constructive knowledge of the defect before Stoudmire‘s accident. In support of its position, the
Stoudmire responded to the City‘s notice-of-claim argument by arguing that the statutes do not require perfection -- only notice -- and that his notice was sufficiently detailed for the City to discern where the accident occurred. In support of his argument, he cited the City‘s response to his notice of claim, in which it stated that, after “careful review of the facts, reports and other information,” it denied liability. He also cited cases from our Court in which a notice of claim had been determined to be adequate, even when it had contained incorrect information. Finally, he stated that, even if his notice of claim was lacking, the City still had copies of the patient-care report from the first responders who had responded to the scene and a case-identification card written by the police officer who also had responded to the scene. These, he said, were sufficient to put the City on notice of his claim.
Next, Stoudmire highlighted a statement by Neil MacDonald, a neighbor who had helped him after his accident. That statement recounted how the hole in Avenue V “was an ongoing problem for a long time.” It also detailed an incident when a Birmingham police officer escorting a funeral procession on his motorcycle had crashed after hitting the hole. Although this document was purportedly signed by MacDonald, it was not notarized.
The trial court held a hearing on the City‘s motion and denied the
On July 21, 2025, the City filed two motions: a renewed motion for a summary judgment and a motion to strike four pieces of Stoudmire‘s evidence. In the motion to strike, the City first argued that the final two sentences of Fitzpatrick‘s affidavit, in which he discussed what someone had told him about a pipe-caused sinkhole, were hearsay and inadmissible. Second, the City wanted the statement purportedly signed by MacDonald to be struck in its entirety because it was not notarized and, thus, not admissible at trial. Third, it argued that the patient-care report, generated by the first responders to the accident was not authenticated and inadmissible at trial. Finally, the City moved to strike portions of the Stoudmire‘s deposition that it believed constituted hearsay.
In its renewed motion for a summary judgment, the City reiterated the arguments that it had made in its initial motion, but it attached new evidence. First, it provided an affidavit of Tywanna Davis. She was the director of the 311 system‘s call center at the time of Stoudmire‘s accident and at the time the investigation was completed. Davis testified that she had conducted a search of the 311 system and had determined that there
Second, to counter evidence from MacDonald‘s statement, the City submitted a notice of claim and deposition excerpts from a separate lawsuit filed by the officer involved in the funeral-procession accident referenced by MacDonald. Because the officer alleged that the accident had occurred after Stoudmire‘s accident, the City argued that it could not establish prior notice.
Stoudmire responded by complaining that the City was not providing any new evidence and that the trial court should treat the amended motion for a summary judgment as a motion for reconsideration. He also incorporated his response to the City‘s earlier summary-judgment motion.
On August 6, 2025, the trial court held a hearing on the motion. Two days later, the trial court issued two orders: one striking three of the four aforementioned pieces of evidence from the record and one denying the City‘s amended motion for a summary judgment.
The City then filed a motion to reconsider on August 8, 2025, which was denied. This petition followed, and our Court ordered answers and
Standard of Review
We will grant a mandamus petition only when there is “‘1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.‘” Ex parte U.S. Bank Nat‘l Ass‘n, 148 So. 3d 1060, 1065 (Ala. 2014) (citation omitted).
While orders denying a summary-judgment motion are not typically reviewable by a mandamus petition, our Court has acknowledged an exception when the motion is “grounded on a claim of immunity.” Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002); see also Ex parte City of Muscle Shoals, 257 So. 3d 850, 855 (Ala. 2018) (acknowledging that “[t]his Court in several cases has entertained a mandamus petition where a municipality asserted an immunity defense” and collecting cases). We will consider the issues presented only to the extent that they challenge the trial court‘s determination of the immunity issues. See Ex Parte Kelley, 296 So. 3d 822, 826 (Ala. 2019).
We review an order denying a summary-judgment motion de novo.
Discussion
Municipalities in Alabama are generally not “liable for damages for injury done to or wrong suffered by any person.”
“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.”
In its petition, the City argues that Stoudmire failed to present substantial evidence demonstrating that the City knew or should have known of the alleged defect and that the City is therefore entitled to immunity.2 Specifically, the City contends that, because much of
I. The City‘s Prima Facie Case
We find no caselaw that affirmatively addresses whether mandamus will lie to consider a trial court‘s adverse ruling on a condition precedent for recovery. The City and Stoudmire argue extensively over whether we should consider those grounds for relief here. But even if failure to comply with the notice-of-claim statutes was not reviewable via mandamus, the baseline immunity determination plainly is. We therefore do not consider whether mandamus extends to rulings regarding compliance with the notice-of-claim statutes. Instead, we will proceed with determining whether the City has demonstrated that no genuine issue of material fact existed as to whether it was entitled to municipal immunity and, therefore, has shown a clear right to mandamus relief.
Together, those two pieces of evidence adequately present a prima facie case that the City did not have notice of the defect in the street before Stoudmire‘s accident. See Ex parte City of Muscle Shoals, 257 So. 3d at 857 (“The City presented evidence from [City officials] indicating that the City had never received a complaint about the [defect].“). Specifically, they showed that the City did not know about the specific defect and that the defect had not existed long enough so that, in the
II. Stoudmire‘s Evidence
A. Stoudmire Did Not Produce Substantial Evidence Demonstrating That The City Had Actual Notice.
Section 11-47-190 allows municipalities to be subject to liability only “after the [defect] ha[s] been called to the attention of the council or other governing body.” In other words, a municipality can be subject to liability only after it is put on “actual notice” of the defect at issue.
In his answer, Stoudmire points us to Fitzpatrick‘s affidavit, the first responders’ patient-care report from the accident, and the case-identification card from the police officer who had responded to the scene of the accident to show that the defect at issue had been “called to the attention of” the City. However, the first responders’ patient-care record and the case-identification card from the police officer cannot be evidence of actual notice because those documents were made contemporaneously with Stoudmire‘s accident. Section 11-47-190 indicates that notice must
In his affidavit, Fitzpatrick testifies that he had been employed by the City from 2003 through 2019. Sometime during his employment (he does not specify when), he was driving a City truck “on Avenue V in between I-20/59 and 21 Street.” His truck hit a large hole, and his trailer hitch broke off. He called and informed his City supervisors that the hole in the road was severe enough to break the trailer hitch. Those supervisors arranged a tow truck for his truck.
However, Fitzpatrick did not state that the City had actual notice because there is no testimony that the defect he encountered was the same one later encountered by Stoudmire. Rather, he states only that he worked for the City for a 17-year period and that, at some unspecified point during that period, he struck a large hole on Avenue V between I-
That gap in time resolves the issue before us. Fitzpatrick‘s encounter could have occurred at any time between 2003 and 2019. The defect he describes, therefore, could have existed years -- or even decades -- before Stoudmire‘s accident. In fact, the end of his employment (2019) is approximately two years before Stoudmire‘s accident occurred (2021). Even if it is possible that the two incidents involved the same defect, possibility is not enough; the conclusion that the two incidents involved the same defect would rest on “‘“speculation that fact issues exist,“‘” which our Court has said is insufficient to defeat a properly supported summary-judgment motion. Ex parte Ala. Peace Officers’ Standards & Training Comm‘n, 34 So. 3d 1248, 1252 (Ala. 2009) (quoting Brown ex rel. Brown v. St. Vincent‘s Hosp., 899 So. 2d 227, 238 (Ala. 2004) (plurality opinion), quoting in turn Crowne Invs., Inc. v. Bryant, 638 So. 2d 873, 878 (Ala. 1994)).
Nothing in the materials before us affirmatively connects Fitzpatrick‘s defect to the defect at issue in this case. The hole Fitzpatrick encountered could have been repaired, resurfaced, or re-formed multiple
B. Stoudmire Did Not Produce Substantial Evidence Demonstrating That The City Had Constructive Notice.
In his answer, Stoudmire points to four pieces of evidence that, he says, indicate that the City was put on constructive notice of the road‘s defect. First, he cites MacDonald‘s statement that multiple serious wrecks had occurred at that location before the defect was eventually repaired. Second, he claims that the City has record-keeping practices that include regularly generating accident reports and dispatching various departments to vehicle accidents. Third, he references the City‘s own testimony that the road was first paved at least 20 years ago and states his belief that “the mere age and expected deterioration of such a road should have placed the City on notice that dangerous defects were likely to exist.” Stoudmire‘s answer at 20. Finally, he points to the same Fitzpatrick affidavit that gives a nearly two-decade-long window during which a defect could have existed. Stoudmire argues that constructive notice can be “found or inferred by virtue of the defect‘s likely age and
Stoudmire is wrong on all points. First, MacDonald‘s statement was struck from the record by the trial court and, thus, cannot be relied on by this Court in determining whether there are any genuine issues of material fact left to be decided. Stoudmire suggests that the trial court erred in determining that the entirety of MacDonald‘s statement was inadmissible because, he says, “[MacDonald] planned to attend trial and testify live to that effect.” Stoudmire‘s answer at 8. But that does not matter. “Written documents not certified or otherwise authenticated as required by
Stoudmire repeatedly refers to MacDonald‘s written statement as an affidavit. But it is not. Even calling it “MacDonald‘s” statement is a bridge too far because there is nothing to indicate that MacDonald is the
Second, the record contains no evidence of other accidents at this precise location from which one could infer that first responders generated reports. Besides, Stoudmire does not allege what these accident reports might show. The only suggestion to the contrary comes from MacDonald‘s statement, which was struck.
Third, Stoudmire‘s argument that 20-year-old streets must have defects rests on mere speculation. The materials before us contain no testimony supporting that premise. Cf. Ex parte City of Muscle Shoals, 257 So. 3d at 857 (“Nor is there any evidence indicating the City or its personnel knew or should have known that a steel grate of the nature of the grate at issue would deteriorate to a hazardous state within a 25-year period.“).
Further,
Finally, Fitzpatrick‘s affidavit, which had stated that he had hit a defect sometime between 2003 and 2019, is deficient for the same reason. Because there is not enough evidence indicating that the defects that caused his and Stoudmire‘s accidents are the same defect, the inquiry ends there. We simply do not have enough information from his affidavit alone, even viewing it favorably to Stoudmire, to infer that the defect in Fitzpatrick‘s case is the same defect at issue in this case. Because of that, we do not have enough testimony to establish that the defect existed for any period of time, much less for such an unreasonable length of time that the City could be charged with notice of it. Thus, Stoudmire failed to produce substantial evidence demonstrating that a genuine issue of material fact existed as to whether the City had constructive notice of the defect at issue.
Conclusion
The City provided evidence demonstrating that it had no notice of
PETITION GRANTED; WRIT ISSUED.
Shaw, Wise, Sellers, and Parker, JJ., concur.
Bryan, J., dissents.
Mendheim, J., dissents, with opinion, which Stewart, C.J., and McCool, J., join.
Ex parte City of Birmingham
SC-2025-0591
MENDHEIM, Justice (dissenting).
The City of Birmingham has been aware of Demarco Stoudmire‘s possible cause of action against the City since before August 6, 2021, when Lawrence Cooper, the Chief Assistant City Attorney, sent Stoudmire a letter regarding Stoudmire‘s “Claim Filed with the City of Birmingham.” Stoudmire‘s notice of claim had described the date of the alleged incident involving a “large Pothole in the roadway” on Avenue V in the Ensley neighborhood in Birmingham and had the stated purpose of “comply[ing] with Alabama Code Sections 11-47-23 and 11-47-192.” Stoudmire‘s notice of claim also had requested that “the appropriate officials contact [Stoudmire‘s] attorney,” whose contact information was included in the notice of claim. Further, I note that, in the May 5, 2021, affidavit of former City employee Thomas Fitzpatrick, Fitzpatrick averred that a truck that he drove had been damaged upon hitting a “large hole in the road” “on Avenue V in between I-20/59 and 21 Street Ensley” and that he had informed his supervisors at the City of that incident. Fitzpatrick was employed by the City from 2003 through 2019.
In Cooper‘s August 2021 letter responding to Stoudmire‘s notice of
After the City completed its investigation, Pamela L. Jones, as Assistant City Attorney, sent Stoudmire‘s counsel a letter dated September 2, 2022, that quoted
The underlying case was twice scheduled for trial, but the trial settings were continued. The trial was then rescheduled for August 18, 2025. On July 21, 2025, less than one month before the scheduled trial and over one year after the City‘s motion for a summary judgment had been denied, the City filed a renewed motion for a summary judgment, arguing the same issues it had presented in its April 2024 motion for a summary judgment. The City also filed a motion to strike, challenging evidence it could have challenged when it filed the April 2024 motion for a summary judgment. Further, in support of its renewed motion for a summary judgment, the City submitted additional evidence, but that
The extraordinary writ of mandamus should “be issued only where there is (1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). I acknowledge that a trial court may exercise its discretion to reconsider its ruling on, or to permit the renewal of, a motion for a summary judgment. See Ex parte Jones, 147 So. 3d 415, 420 (Ala. 2013) (discussing the trial court‘s discretion regarding summary-judgment practice). However, this Court is not obligated to exercise its discretion to allow mandamus review simply because the trial court chose to reconsider a motion for a summary judgment. And, in the context of a renewed motion for a summary judgment, the requirement for seeking timely review is a pertinent consideration to the exercise of such discretion. Id. at 420 (concluding, as to Chad Jones‘s second mandamus petition raising the issue of State-agent immunity, “that [he] ha[d] failed
Under the facts before us, I cannot conclude that the circuit court had an imperative duty to grant the City‘s renewed motion for a summary judgment as to Stoudmire‘s action against the City simply because it chose to consider the City‘s renewed motion for a summary judgment. Nor, assuming that there was no disputed issue of material fact as to the sufficiency of Stoudmire‘s notice, can I conclude that review by appeal from an adverse judgment would be an inadequate remedy in light of the timing of the City‘s renewed motion for a summary judgment in relation to the scheduled trial. This mandamus petition reflects nothing more than an inefficient, last-minute interruption to what would have been the normal trial-and-appeal process regarding issues that the City could have sought timely mandamus review of after the entry of the July 2024 order. By rewarding the City‘s essentially duplicative motion practice, this Court is encouraging more of the same. Specifically, by taking a liberal approach to renewed-motion practice near the time of a scheduled trial, this Court is creating a back-door mechanism that lowers
Stewart, C.J., and McCool, J., concur.