ELECTRONICALLY FILED 4/10/2013 5:00 PM 47-CV-2009-000759.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C.

SMITH, CLERK

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA KELLY L. SPURLOCK, As Personal Representative of the Estate of Darren Spurlock, Deceased, Plaintiff, v. CITY OF HUNTSVILLE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action Number: CV-09-759-CC

REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS CITY OF HUNTSVILLE, ALABAMA, INVESTIGATOR TONY MCELYEA, INVESTIGATOR TERRY LUCAS, AND INVESTIGATOR JIMMY ANDERSON

MICHAEL L. FEES C. GREGORY BURGESS ALLISON B. CHANDLER FEES & BURGESS, P.C. 213 Green Street Huntsville, Alabama 35801 Telephone Number: (256) 536-0095 Facsimile Number: (256) 536-4440 E-mail: court@feesburgess.com

Attorneys for defendants City of Huntsville, Alabama, Investigator Tony McElyea, Investigator Terry Lucas, and Investigator Jimmy Anderson

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA KELLY L. SPURLOCK, As Personal Representative of the Estate of Darren Spurlock, Deceased, Plaintiff, v. CITY OF HUNTSVILLE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action Number: CV-09-759-CC

REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS CITY OF HUNTSVILLE, ALABAMA, INVESTIGATOR TONY MCELYEA, INVESTIGATOR TERRY LUCAS, AND INVESTIGATOR JIMMY ANDERSON Defendants City of Huntsville, Alabama (COH), and Investigators Tony McElyea, Terry Lucas, and Jimmy Anderson (collectively COH defendants) jointly submit the following reply brief in further support of their motion for summary judgment in this case. I. ARGUMENT Where, as here, there are no genuine issues as to any material fact, a case may be adjudicated on summary judgment if the moving party has demonstrated its entitlement to judgment as a matter of law. Ala. R. Civ. P. 56(c)(3). In her summary-judgment response, plaintiff Kelly L. Spurlock expressly admits that she takes little issue with the facts as set forth by the defendants in their [summary-judgment] filings. (4/1/13 Pl.s Combined Oppn to Defs. Mot. for Summ. J., p. 4). Plaintiff goes on to identify what she considers the primary factual disputes at issue: (1) whether the pursuit of Valorie Cox violated an Alabama statute; and (2) whether the pursuit of Cox violated a policy of the Huntsville Police Department (HPD). (Id.). Despite plaintiffs characterization of these disputes as factual, they are most certainly not.

Indeed, to decide these two issues that plaintiff identifies as outcome-determinative, the Court does not have to resolve any factual conflicts in the record evidence. Rather, the Courts task is simply to apply established law to undisputed facts and draw legal conclusions. Thus, since only matters of law are before the Court, this case is ripe for adjudication at the summary-judgment level. See Ala. R. Civ. P. 56(c)(3); Ex parte General Motors Corp., 769 So. 2d 903, 909 (Ala. 1999). The COH defendants explain in more detail below why they are entitled to summary judgment despite plaintiffs contention to the contrary. A. Plaintiff Offers No Substantial Evidence the Investigators Failed to Act with Due Care.

Plaintiff puts forth two arguments in an attempt to show that Investigators McElyea, Lucas, and/or Anderson failed to exercise due care during the pursuit of Valorie Cox that ended in the collision at issue in this case. 1 First, plaintiff claims the pursuit of Cox violated HPDs pursuit policy. 2 Second, plaintiff claims the pursuit violated section 32-5A-7 of the Alabama

Plaintiffs summary-judgment response also includes her opposition to the motion for summary judgment filed by co-defendant Investigator Jimmy Williams. (4/1/13 Pl.s Combined Oppn to Defs. Mot. for Summ. J.). This reply brief only addresses the arguments raised by plaintiff in opposition to the summary-judgment motion and brief filed by the COH defendants. Although plaintiff does not identify which specific HPD policy was allegedly violated, it appears the policy at issue is HPDs policy governing pursuits, titled Written Directive 401-5: Emergency and Pursuit Driving / Emergency Roadblocks. (Ex. P, Dauro Aff., Tab 8). The COH defendants make this assumption because the pursuit policy is the only policy mentioned by plaintiff in her summary-judgment response. (See 4/1/13 Pl.s Combined Oppn to Defs. Mot. for Summ. J., p. 5). More specifically, it appears plaintiff relies on the justification language in the pursuit policy instructing police officers to assess whether the necessity of immediate apprehension [of the fleeing suspect] outweighs the level of danger created in a pursuit. (Id.; Ex. P, Dauro Aff., Tab 8 [D440-41]). 2
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Code. 3 Despite these allegations, however, the evidence relied upon by plaintiff wholly fails to demonstrate that the investigators did not exercise due care during their pursuit of Cox. With regard to the alleged violation of HPDs policy governing pursuits, plaintiff baldly states that the opinions of her retained expert, Geoffrey Alpert, and former chief of police for the City of Madison, Daniel Busken, constitute substantial evidence that the policy was in fact violated. 4 To the contrary, the opinions offered by these proffered experts merely rise to the level of conjecture and speculation, which is a far cry from the substantial evidence needed by plaintiff to overcome the COH defendants entitlement to summary judgment. See Blackburn v. State Farm Auto. Ins. Co., 652 So. 2d 1140, 1142 (Ala. 1994) ([B]are argument or conjecture
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Within this section of her summary-judgment response, plaintiff points to subsections (b)(3) (The driver of an authorized emergency vehicle may [e]xceed the maximum speed limits so long as he does not endanger life or property.) and (d) (The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of others.) (emphasis added). Plaintiff also contends that multiple Huntsville officials believed the pursuit of Cox violated HPDs pursuit policy. (4/1/13 Pl.s Combined Oppn to Defs. Mot. for Summ. J., p. 17). This allegation, although provocative, is unsupported by the record. First, former HPD chief of police Henry Reyes denied telling Busken that he thought the pursuit violated policy. (Ex. G, Reyes Dep., pp. 40-42). In fact, Reyes has consistently stated there were no policy violations related to the pursuit. (See id. at pp. 21-22, 33-35). Second, the only other person to whom plaintiff could be referring as the mysteriously unnamed Huntsville official appears to be Lieutenant Gerald Norris, a former STAC supervisor. (See 4/1/13 Pl.s Combined Oppn to Defs. Mot. for Summ. J., p. 6). If so, apparently plaintiff expects this Court to somehow draw the conclusion that Lieutenant Norris alleged statement that the chase would not have happened if he had been on duty actually means the pursuit of Cox violated HPDs pursuit policy. Not only does this conclusion go far beyond the words of Lieutenant Norris alleged statement, but it requires a leap in logic that defies common sense. Furthermore, Lieutenant Norris at deposition confirmed he did not know what would have happened if he had been the supervisor on-duty during the pursuit. (Ex. F, Norris Dep., pp. 17-19 [denying making any statement or having any conversation with Busken regarding the pursuit of Cox, and stating he has no idea what would have happened if he had been on-duty during the pursuit]). As such, plaintiffs contention that multiple Huntsville officials believed the pursuit was out-of-policy flounders for lack of evidentiary support. Thus, plaintiff is left with only her say-so on this point, which is hardly substantial evidence warranting the denial of summary judgment. 3
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does not satisfy the non-moving partys burden to offer substantial evidence to defeat the [summary-judgment] motion.); see also Stockton v. CKPD Development Co., LLC, 936 So. 2d 1065, 1079 (Ala. Civ. App. 2005) (finding no genuine issue of material fact where experts opinion was a matter of speculation and conjecture). The weight of the evidence clearly

indicates that Investigators McElyea, Lucas, and Anderson complied with HPD policy because the need to immediately apprehend Cox outweighed the risk created by the pursuit. (See Defs. Br. in Support of Summ. J. Mot., pp. 9-11). This is especially true given Coxs reckless driving, including the accident-with-injury she caused and then fled from on Memorial Parkway. See Gooden v. City of Talladega, 966 So. 2d 232, 245-46 (Ala. 2007) (affirming summary judgment for defendant police officer where fleeing suspects reckless and evasive driving justified initiation and continuation of pursuit that ended in suspects death). Similarly, plaintiffs claim that the COH defendants violated section 32-5A-7 of the Alabama Code also misses its mark. Plaintiff premises the alleged violation of section 32-5A-7 solely on the speed of the investigators during the pursuit. (4/1/13 Pl.s Combined Oppn to Defs. Mot. for Summ. J., p. 17). At the extreme end, the testimony from one of the investigators identified their speed as a maximum of 91 miles per hour, and only for a short period of time. 5

Plaintiff also relies on Coxs testimony that she may have reached speeds of 100 m.p.h. (4/1/13 Pl.s Combined Oppn to Defs. Mot. for Summ. J., p. 19). This reliance is not only misplaced, but it misleads the Court to consider a higher speed than is appropriate. The operative speed in this case is the speed traveled by the investigators (e.g., 91 m.p.h.), not Cox (e.g., 100 m.p.h.). This is because section 32-5A-7 governs the conduct of police officers in the operation of their own vehicles and does not require them to somehow control the speed of fleeing suspects. See Ala. Code 32-5A-7 (1975). Thus, the speed at which Cox believes she may have been traveling is completely irrelevant under the due care analysis of section 32-5A-7. Nor does it create a factual dispute as to the actual speed traveled because, again, Coxs speed has no legitimate bearing on the issue at hand. By including Coxs opinion regarding her speed, plaintiff attempts to inflate the relevant speed at issue. This she cannot do. To be crystal clear, the highest speed relevant to the Courts analysis, which was attained only one time prior to the 4

(Ex. C, Lucas Dep., p. 68). Neither the statute itself nor the case law cited by plaintiff requires this Court to draw the conclusion that simply driving 91 m.p.h.at some point during the pursuitautomatically violates section 32-5A-7. In fact, section 32-5A-7 specifically allows police officers to exceed the maximum speed limit as long as they do not endanger life or property. Ala. Code 32-5A-7(b)(3) (1975). Critically important, the statute does not create a bright-line rule at a specific speed, but instead allows an officer to exceed the speed limits as long as he exercises due regard. Id. at (b)(3), (d). 6 This explains why there is no indication in the statute, for instance, that 90 m.p.h. is acceptable but 91 m.p.h. is not. Id. As such, because the statute does not draw a line in the sand like plaintiff erroneously asks this Court to do, her reliance on speed alone is insufficient to establish a violation of section 32-5A-7. See e.g., Doran v. City of Madison, 519 So. 2d 1308, 1314 (Ala. 1988) (affirming summary judgment because defendant police officers used due care during pursuit that reached speeds of 80 to 90 m.p.h.). Furthermore, the two cases cited by plaintiff do not support her contention that traveling 91 m.p.h. compels a finding that the investigators acted without due care during the pursuit. (See Pl.s Combined Oppn to Defs. Mot. For Summ. J., pp. 20-21). Of significance here is that both cases, Blackwood v. City of Hanceville, 936 So. 2d 495 (Ala. 2006), and Suttles v. Roy, 75 So.

vehicles entering Redstone Arsenal, was 91 m.p.h. and no higher. (Ex. C, Lucas Dep., pp. 67-68 [testifying his highest speed may have reached 91 m.p.h. while driving on Martin Road before entering Redstone Arsenal]).
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Of note, section 32-5A-7(d) speaks in terms of exercising due regard when driving an emergency vehicle while the case law applicable to police pursuits generally refers to exercising due care. See, e.g., Doran v. City of Madison, 519 So. 2d 1308, 1312-14 (Ala. 1988) (analyzing whether officers exercised due care during pursuit). The COH defendants are not aware of any material difference between these standards, and furthermore believe they each describe a negligence standard of care. Thus, in this brief, these terms may be used interchangeably. 5

3d 90 (Ala. 2010), are materially different from this case. Thus, they are in no way dispositive of the issue of whether plaintiff has presented substantial evidence to overcome the COH defendants summary-judgment showing. To begin with, neither case addressed the issue of officer liability when the fleeing suspect injures the plaintiff. To the contrary, in both Blackwood and Suttles, it was the officer himself who was personally involved in a collision with the injured plaintiff. Blackwood, 936 So. 2d at 499; Suttles, 75 So. 3d at 92. Additionally, neither officer in Blackwood or Suttles was involved in a pursuit of a fleeing suspect at the time of the accident. Id. To the contrary, the officer in Blackwood was responding to an emergency call (i.e., automobile accident) as backup, and the officer in Suttles was participating in a fund-raising event on his motorcycle. Id. Furthermore, the Blackwood court, whose opinion forms a significant part of plaintiffs summary-judgment response, expressly limited its holding to situations involving non-pursuit emergency calls. Blackwood, 936 So. 2d at 508 ([W]e are not called upon to consider whether any additional or separate principles might apply if the peace officer driving a patrol car is not simply responding to an emergency call, but rather, in accord with another of the scenarios stated by 32-5A-7(a), is in the pursuit of an actual or suspected violator of the law.). These important distinctions render Blackwood and Suttles totally inapposite to the case before the Court; as such, they cannot support plaintiffs contention that a speed of 91 m.p.h. is an automatic violation of section 32-5A-7 and/or is proof of negligence. Consequently, plaintiff has failed to present evidence or argument sufficient to establish that the COH defendants breached their duty with regard to her decedent, Darren Spurlock. For this reason alone, plaintiffs wrongful death claim against the COH defendants fails as a matter of law.

B.

There Is No Evidence That Any Alleged Lack of Due Care Proximately Caused Spurlocks Death.

Plaintiffs wrongful death claim also fails because there is insufficient evidence to establish that any alleged breach by Investigators McElyea, Lucas, and/or Anderson proximately caused Mr. Spurlocks death, a necessary element of plaintiffs claim. In the context of police pursuits, courts have analyzed the existence of proximate cause by looking at whether the officer was directly involved in the collision that caused the harm, or alternatively if the collision resulted from an entirely unnecessary pursuit. See Seals v. City of Columbia, 641 So. 2d 1247, 1250 (Ala. 1994) (proximate cause existed where officer violated departmental policies in pursuing a fleeing suspect without headlights after roadblock was put in place); Doran, 519 So. 2d at 1314 (no proximate cause where police vehicles did not actually collide with the plaintiffs). Here, plaintiff relies on Seals alone and attempts to pigeonhole this case to fit the very narrow and specific circumstances at issue in that case. In Seals, the defendant officer failed to

terminate a pursuit after learning a roadblock was in place, an action which directly violated departmental policy. 7 Seals, 641 So. 2d at 1250. It was this specific failure that created a genuine issue of material fact as to whether the officer had acted negligently, rendering summary judgment inappropriate. Id. Here, we have no such failure on the part of the COH defendants. Rather, the facts of this case are far more similar to the fact pattern in Doran, which was cited with approval by the Seals court.

The roadblock present in Seals eliminated any need for the pursuit to continue because it ensured the fleeing suspect would be apprehended. Seals, 641 So. 2d at 1249-50. In contrast, Investigators McElyea, Lucas, and Anderson had no such assurance during the pursuit of Cox, as no roadblock or similar police maneuver was ever successfully employed. (See Ex. B, McElyea Dep., pp. 79-82 [testifying that an HPD officer attempted to place spike strips in Coxs way, but she went a different route]; Ex. P, Dauro Aff., Tab 2, West Precinct radio traffic [D7]). 7

Indeed, Doran involved a police pursuit where there was little evidence the pursuing officers had failed to use due care during the pursuit except for exceeding the speed limit. Doran, 519 So. 2d at 1314. The court explicitly stated that [t]he mere fact that a police officer exceeds the maximum speed limit during a pursuit is not sufficient to establish causation. Id.

Furthermore, the court went on to conclude that an officer is not obliged to allow [a fleeing suspect] to escape simply because the suspect may be driving recklessly. Id. (quoting Madison v. Weldon, 446 So. 2d 21, 28 (Ala. 1984)). As previously discussed, there is no substantial evidence the investigators acted negligently during the pursuit of Cox. Likewise, there is no substantial evidence to show that their conduct was the legal cause of the eventual collision between Cox and Spurlock. 8 For this additional reason, summary judgment is appropriate in favor of the COH defendants. See Gooden, 966 So. 2d at 245 (affirming summary judgment where plaintiff failed to present evidence that defendant police officers alleged violations of departmental policy and/or section 32-5A-7 of the Alabama Code proximately caused the collision at issue).

As with the evidence of breach, plaintiff relies on speculative opinion testimony from her retained expert, Alpert. (4/1/13 Pl.s Combined Oppn to Defs. Mot. for Summ. J., pp. 12-14). Although Alpert admits he cannot actually testify what Cox would or would not have done in the event the pursuit had been terminated, he goes on to speculate she may have slowed down and taken a different route. (Id. at p. 13). Plaintiff also relies on Coxs self-serving testimony she would have stopped immediately if the investigators stopped chasing her. (Id. at p. 14). Yet neither of these assertions demonstrates the collision between Cox, who was driving recklessly while under the influence of crack cocaine, and Spurlock was proximately caused by some alleged negligence of Investigators McElyea, Lucas, and/or Anderson. Significantly, even the United States Supreme Court recognizes the uncertain effect that terminating a pursuit may have on a fleeing suspect, thus explaining its conclusion that officers are under no obligation to terminate a pursuit and simply hope for the best. Scott v. Harris, 550 U.S. 372, 385 (2007) (pointing out that terminating a pursuit may have no effect on a suspects reckless driving). In short, the speculative and hypothetical nature of the evidence presented by plaintiffi.e., what would have happened if the pursuit was discontinued earlierin no way creates the causal nexus necessary for her wrongful death claim. 8

C.

The COH Defendants Are Entitled to State-Agent Immunity.

Putting aside the fact plaintiff has failed to present substantial evidence supporting the essential elements of her wrongful death claim, the COH defendants are plainly entitled to summary judgment on the basis of state-agent immunity pursuant to section 6-5-338 of the Alabama Code. Analyzing the defense of state-agent immunity under section 6-5-338 involves a two-pronged burden-shifting process. Howard v. City of Atmore, 887 So. 2d 201, 205 (Ala. 2003). In her summary-judgment response, plaintiff concedes the COH defendants have met the first prong of this standard. (4/1/13 Pl.s Combined Oppn to Defs. Mot. for Summ. J., p. 15). This leaves only the second prong at issue here, and plaintiff argues the COH defendants are stripped of immunity because Investigators McElyea, Lucas, and Anderson exceeded their authority during the pursuit by violating HPDs pursuit policy and section 32-5A-7 of the Alabama Code. (Id. at p. 16). As explained below, both of these arguments fall short. 9 To begin, stripping an officer of state-agent immunity simply because he allegedly failed to use due regard and/or not endanger life or property in accordance with section 32-5A-7 altogether eliminates the immunity defense in the context of police pursuits. This is wrong. How so? It improperly conditions a police officers entitlement to immunity on whether he committed a tort at all (i.e., whether he drove negligently in pursuing the fleeing suspect). It does not take much reflection to recognize the serious and fundamental problem with this mode of analysis. The Alabama Legislature enacted section 6-5-338 to grant police officers immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties. Ala. Code 6-5-338(a) (1975) As discussed supra at pages 2-6, there is no substantial evidence to show that either the statute or HPD policy was violated during the pursuit of Cox. The COH defendants will not repeat that argument here, but instead direct the Courts attention to that portion of their brief. 9
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(emphasis added). Clearly, this statute contemplates that tort liability will sometimes flow from the actions of police, yet for public policy reasons no liability attaches if the officer, at the time of the torts commission, was performing law enforcement duties (i.e., those defined by Ex parte Cranman, 792 So. 2d 392 (Ala. 2000) and its progeny). Stated another way, the immunity defense created by section 6-5-338 is designed to give legal protection when in fact a tort is committed. But quite obviously, this sort of protection is not needed when no tort actually occurs, for in that particular situation the injured plaintiffs claim against the officer will ultimately fail because he cannot establish a prima facie case of negligence, etc. Here, by contending the COH defendants are not entitled to state-agent immunity because they violated the due regard and endanger life and property provisions of section 32-5A-7(b)(3) and (d), plaintiff is essentially arguing that the COH defendants are entitled to state-agent immunity only to the extent they pursued Cox lawfully and non-negligently. This argument is as illogical as it is meritless for the reason identified above. If such were the law, there would be no need for stateagent immunityever. Indeed, if the applicability of state-agent immunity were co-extensive with, and determined by, the sole question of whether a police officer committed a tort, then the whole issue of immunity would never even come into play. Instead, in a police pursuit case such as this one, the liability of the officer and the immunity he enjoys would simply be conclusively determined by whether or not he committed a tort by negligently pursuing the fleeing suspect on the occasion at issue. This cannot be the current state of immunity law in Alabama. And if somehow it is, then section 6-5-338 is clearly no immunity defense at all, as it has been effectively repealed and replaced by general principles of tort law. But even beyond the flaw in plaintiffs argument as discussed above, her reliance on section 32-5A-7 as well as HPDs pursuit policy as a basis for denying the COH defendants 10

state-agent immunity fails for yet another reason. This is because, even assuming the statute and policy were violated during the pursuit of Cox, these are not the type of violations that result in the loss of state-agent immunity under settled Alabama law. In order to qualify as an exception to immunity, the state agent must have failed to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist. Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003) (quoting Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000)). On the other hand, state agents are entitled to immunity for actions taken in the exercise of their judgment . . . when they are discharging duties imposed by statute, rule, or regulation. Giambrone, 874 So. 2d at 1052. This authority is fatal to plaintiffs argument. Without question, complying with HPDs pursuit policy and section 32-5A-7 necessarily involved the use of discretion and judgment on the part of Investigators McElyea, Lucas, and Anderson. (See Defs. Br. in Support of Summ. J. Mot., pp. 16-18). That is to say, neither the statute nor the policy prescribed detailed rules or regulations like a checklist for the investigators to follow as they pursued Cox and attempted to stop her flight. To the contrary, HPDs pursuit policywhich allows for pursuits when the necessity of immediate apprehension outweighs the level of danger created in a pursuitsimply provides officers with a balancing test and risk factors they must continuously evaluate in deciding whether to initiate or continue a pursuit of a fleeing suspect. (Ex. P, Dauro Aff., Tab 8, Written Directive 401-5 [D440-42]). The evaluation of such factors, which are not exhaustive, necessarily calls for the exercise of personal deliberation and tactical decision-making by the pursuing officer in the field, which often must be done under tense, uncertain, and rapidly-evolving circumstances. Additionally, the

requirements in section 32-5A-7 that an emergency vehicle driver must not endanger life or property and drive with due regard for the safety of all persons likewise do not provide an 11

officer with detailed rules or regulations on how to drive during a police pursuit. Rather, the statute sets forth only general statements regarding safety, which can be followed only through the use of discretion and judgment. Thus, any alleged policy or statutory violationof which there has been no substantial evidenceis plainly insufficient to remove this case from the purview of state-agent immunity. 10 Compare Ex parte City of Montgomery, 99 So. 3d 282, 294 (Ala. 2012) (determining plaintiff failed to show defendant officers acted beyond their authority for allegedly violating training and instruction on how to interact with disabled individuals because training did not involve detailed rules and regulations), and Ex parte Kennedy, 992 So. 2d 1276, 1286 (Ala. 2008) (finding summary judgment appropriate for defendant officers where plaintiff failed to show officers acted beyond their authority for allegedly violating training manual that did not involve detailed rules and regulations), and Ex parte Estate of Reynolds, 946 So. 2d 450, 454, 458 (Ala. 2006) (concluding that ALDOT employees did not act beyond their authority for allegedly violating road manuals because the manuals d[id] not provide explicit guidelines for particular situations, thus requiring the employees to exercise[ ] judgment in carrying out their duties), with Giambrone, 874 So. 2d at 1055 (denying summary judgment to defendant wrestling coach because he acted beyond his authority by violating specific guidelines and rules detailing proper techniques for coaching wrestling). Consequently, because plaintiff Plaintiffs reliance on Blackwood to support her argument that state-agent immunity is unavailable to the COH defendants is, once again, unpersuasive. For starters, the Blackwood court specifically chose to not extend its holding to cover situations involving police pursuits. Blackwood, 936 So. 2d at 508. Furthermore, summary judgment was inappropriate in that case because there was a material fact dispute regarding the speed at which the defendant police officer, who personally collided with plaintiffs decedent, traveleda dispute that does not exist in this case. Additionally, the denial of summary judgment to defendants was driven by the defendant police officers concession that, if he had been traveling the speed plaintiff contended, his actions would not be reasonable and would have been unsafe. Blackwood, 936 So. 2d at 507. Here, we have no such evidence in the record. Thus, based on these very significant distinctions, the Blackwood opinion does not control the outcome of this case. 12
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has failed to meet her burden of showing that one of the exceptions to state-agent immunity applies, summary judgment should be granted in favor of the COH defendants. II. CONCLUSION For these reasons and those set forth in their principal brief, the COH defendants are due summary judgment on all claims in plaintiffs complaint, as amended.

S/C. Gregory Burgess Michael L. Fees (FEE002) C. Gregory Burgess (BUR103) Allison B. Chandler (CHA097) Attorneys for defendants City of Huntsville, Alabama, Investigator Tony McElyea, Investigator Terry Lucas, and Investigator Jimmy Anderson OF COUNSEL: FEES & BURGESS, P.C. 213 Green Street Huntsville, Alabama 35801 Telephone Number: (256) 536-0095 Facsimile Number: (256) 536-4440 E-mail: court@feesburgess.com

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CERTIFICATE OF SERVICE I hereby certify that on the 10th day of April, 2013, I electronically filed the foregoing with Clerk of Court using the Alafile/Alacourt system which will send notification to the following: DAVID H. MARSH DERRICK A. MILLS WILLIAM R. ANDREWS MARSH, RICKARD & BRYAN, P.C. 800 Shades Creek Parkway, Suite 600-D Birmingham, Alabama 35209 Telephone: (205) 879-1981 Facsimile: (205) 879-1986 E-mail: dmarsh@mrblaw.com E-mail: dmills@mrblaw.com E-mail: randrews@mrblaw.com J. JEFFERY RICH MADISON COUNTY COMMISSION 100 Northside Square, Suite 700 Huntsville, Alabama 35801-8815 Telephone: (256) 519-2061 Facsimile: (256) 519-2059 E-mail: jrich@madisoncountyal.gov RICHARD L. MORRIS SIROTE & PERMUTT, P.C. 305 Church Street, Suite 800 Huntsville, Alabama 35801 Telephone: (256) 536-1711 Facsimile: (256) 518-3681 E-mail: rmorris@sirote.com

WILLIAM H. ATKINSON FITE, DAVIS, ATKINSON, GUYTON, BURT, P.C. P.O. Box 1080 Winfield, Alabama 35594 Telephone: (205) 487-4848 Facsimile: (205) 487-4890

S/C. Gregory Burgess C. Gregory Burgess

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