In Legal Terms - Legislative Wrap-Up 2000

Counties Face New Challenges After Recent Road Rulings

The Supreme Court of Alabama has recently issued two opinions which will impact the county in its "general superintendence" of county roads. Unfortunately, neither of these cases was decided in favor of the county. The cases are outlined below.

Elmore County Commission v. Smith et al. - This case involves the vacation of a public road by abutting landowners. Pursuant to Code of Alabama 1975, § 23-4-20, the landowners abutting Payson Road in Elmore County executed a written instrument declaring the road vacated and presented the declaration to the Elmore County Commission, which passed a resolution assenting to the vacation. The declaration of vacation and the county commission's resolution were then filed and recorded in the Elmore County Probate Office. Subsequently, residents of property "in the vicinity" of Payson Road filed for declaratory and injunctive relief in the Elmore County Circuit Court against Elmore County, Elmore County Commission, and the landowners seeking vacation of the road challenging the validity of the vacation. Following summary judgment in favor of the suing residents, the county and other defendants appealed to the Supreme Court.

In a 6-3 decision issued on March 24, 2000, the Supreme Court upheld the lower court's ruling, holding that the proper procedures for vacation of the road had not been followed by the landowners and the county. The majority found that the abutting landowners and the county had properly complied with the procedures set out in § 23-4-20, but that in order to perfect vacation of a road, the parties must also comply with Code of Alabama 1975, § 23-4-2, which requires, among other things, a hearing in probate court. The county and other defendants had argued that the procedures in § 23-4-2 only apply when the vacation is initiated by the county or municipal governing body,1 but the Court rejected that argument, and unequivocally stated that both Code sections must be followed for vacation by abutting landowners.

Justices Maddox and Cook wrote excellent dissents asserting that the statutory procedures for vacation by landowners were separate from and exclusive of the procedures to be used when the vacation is by the governmental entity. However, the majority, relying in part on an earlier case with very different facts, established a new rule of law requiring a hearing in probate court in all road vacation cases.

The potential impact of this case is significant for both counties and municipalities, since the statutory provisions at issue here apply to municipalities and counties alike. If the decision in this case stands,2 the vacation of county and municipal roads by abutting landowners will become much more burdensome, time-consuming, and expensive. Additionally, this decision potentially threatens the validity of thousands of road closures across the state which have been accomplished through the same procedures used to close Payson Road in Elmore County.

Ward v. Morgan County - This case involves the allegations of negligence by the county in a wrongful death case filed by the father of a minor who was killed in an accident which occurred when the child attempted to return from a four-to-six inch shoulder drop-off after his car had left the road for unknown reasons. The plaintiff maintained that the county had breached its duty to make its roads safe by negligently failing to maintain the shoulder in a reasonably safe condition and/or by negligently failing to warn of the existence of an unreasonably dangerous condition. The trial court entered summary judgment in favor of the county holding that the county owed no duty to the plaintiff's son because it could not reasonably foresee that a motorist exercising due care would be injured unless it constructed a higher or wider shoulder or installed warning signs. However, the Supreme Court, in a decision released on April 21, 2000, reversed.

The Supreme Court found that under the facts in the case, reasonable persons could disagree as to whether it was foreseeable that injury or death could occur from the county's failure to repair the shoulder drop-off or warn of the drop-off level that existed after resurfacing. The Court disagreed with the trial court's finding that it was not foreseeable that the driver's vehicle would leave the paved portion of the road during daylight in an area where the roadway was straight, stating "This is tantamount to concluding that it is unforeseeable that a driver will leave the road in an attempt to avoid an object, to avoid a collision with another vehicle, or as a result of simple inadvertance -- all of these things, in fact, can happen on a straight road during daylight hours."

In essence, the Supreme Court held that there was "substantial evidence" from which a jury could have found the county negligent, and that the county was not entitled to a judgment in its favor "as a matter of law". The case was remanded to the trial court for a trial on the merits.

This case represents yet another example of the fact that a county can in fact be sued over county road conditions - although, as you will recall, the statutory cap on judgments has been recently strongly reaffirmed. Even with the cap, the potential liability to counties for negligent road repair and maintenance is severe. Therefore, it is extremely important that counties make every effort to keep their roads in good repair with proper signage and railings, and to warn of hazardous or potentially dangerous road conditions.

1 The Association of County Commissions of Alabama filed an amicus brief in support of the County's position.

2 An application for Rehearing has been filed and both the Association of County Commissions of Alabama and the Alabama League of Municipalities have filed amicus briefs. However, as has been stated in the past, the Court rarely grants rehearing.