Ex parte City of Birmingham PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Nicholas Raynard Smith, Jr. v. City of Birmingham) (Jefferson Circuit Court: CV-21-901781).

Rel: September 19, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2025

_________________________

SC-2024-0700
_________________________

Ex parte City of Birmingham

PETITION FOR WRIT OF MANDAMUS

(In re: Nicholas Raynard Smith, Jr.

v.

City of Birmingham)

(Jefferson Circuit Court: CV-21-901781)

McCOOL, Justice.
SC-2024-0700

The City of Birmingham ("the City") has petitioned this Court for a

writ of mandamus, asking us to direct the Jefferson Circuit Court to enter

a summary judgment in the City's favor with respect to the claims that

Nicholas Raynard Smith, Jr., has asserted against it.

Facts and Procedural History

At approximately 9:30 p.m. on June 23, 2019, John Daniels, Jr., was

driving south through Birmingham on Interstate 59 ("I-59"). While

Daniels was driving in the left-hand lane, an automobile in the lane to

his right struck the right side of his black Toyota Camry, which caused

Daniels to lose control of his car and crash into the concrete median that

separates the northbound and southbound lanes of I-59. There are

streetlights spaced along that concrete median, and Daniels's car came

to rest "somewhere between [streetlights] W066 and W067." "[R]ight

after that, cars just started hitting [Daniels's] car" "back to back to back."

At the time of Daniels's accident, Smith and his friend Keith

Holiness were traveling southbound on their motorcycles in the left-hand

lane of I-59. Both men were traveling at or slightly above the 60-mile-

per-hour speed limit, and both had their headlights turned on. Smith

and Holiness reached the accident site almost immediately after

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Daniels's car struck the concrete median; in fact, Holiness saw at least

two collisions in that accident occur and testified in his deposition that

the accident "was still going on" as he and Smith approached it. Holiness

first noticed the accident when he was approximately 70 yards from it,

and, according to Holiness, Smith noticed it "probably about the same

time." Holiness swerved to the right of the cars that had been involved

in the accident, but he struck the bumper of one of those cars, which sent

him into "a high speed wobble." Holiness ultimately managed to bring

his motorcycle to a stop a little further down I-59. Smith has no

recollection of the accident, but, according to Holiness, Smith "hit the

brakes" when he saw the accident but was unable to avoid colliding with

Daniels's car. Smith suffered extensive injuries as a result of his

accident, including "head trauma, facial injuries, injuries to his teeth, a

fracture of the malar and maxillary bones, a foot fracture, a fractured

pelvis, a pulmonary collapse, and other injuries."

It is undisputed that, when first responders arrived at the scene of

the accident, "[street]lights … W066 … and W067 … were not

operational." However, there is conflicting evidence as to whether those

streetlights had been operational at the time of Daniels's accident.

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According to Daniels, "the interstate lights were on that night before the

accident," but he did not "actually look up any time before th[e] accident

to observe which lights were working" and thus "could not give definitive

testimony as to which light bulbs … were on or off at the time of [his]

accident." Tommie Stinson, the City's division manager for signals and

streetlights, testified in his deposition that the fact that streetlights

W066 and W067 were not operational when first responders arrived did

not necessarily mean that those streetlights had been inoperable at the

time of Daniels's accident. According to Stinson, "[Daniels's] accident

could have caused [streetlights W066 and W067] to go out" because "the

wiring is in the median," so there "can be a hard enough impact [to the

median] where it can shake and rattle the wiring in the pole itself and

cause a short and malfunction in the circuit." Holiness testified in his

deposition, however, that "[t]he [street]lights weren't on" when he and

Smith "got on the interstate," and, although Smith has no recollection of

his accident, he testified in his deposition that a "lighting problem" had

existed at that part of I-59 "for years."

James Greer Fowler, the director of the City's Department of

Transportation, testified in his deposition that it was "[his]

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understanding … that the City … is responsible for the maintenance of

the lighting" on that part of I-59 where Smith's accident occurred, and,

according to Fowler, in April 2019 the City "undertook a significant

project to replace and upgrade the light fixtures along that section of the

interstate." That project was necessary, Fowler explained, because "some

fixtures … were not working along that corridor, and also the type of

fixtures that were along that corridor were outdated and really needed to

be upgraded to more modern LED fixtures." Fowler also testified that,

at the time of Smith's accident, the City's replacement project "had gotten

to and beyond th[e] point where [Smith's accident] occurred."

Stinson testified in his deposition that the streetlights on I-59 were

functioning properly following the City's April 2019 replacement project

and that he had received "no notification from anyone that the lights were

not working." Stinson acknowledged that, following the City's

replacement project, there had briefly been "a breaker problem" and "two

bad fuses" that had resulted in some inoperable streetlights, including

streetlights W066 and W067. However, Stinson testified that those

problems had been addressed on April 29, 2019, and that he had not

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received any notice "that there was a problem with … light fixtures W061

through W070 … after that."

In June 2021, Smith filed a complaint against the City, asserting

claims of negligence, wantonness/recklessness, and negligent/wanton

hiring, training, supervision and/or retention. 1 According to Smith, the

City "owed a duty to [him] … and all other motorists traveling on I-59 to

ensure the interstate lights were maintained, repaired, and operable and

to exercise reasonable care and due care maintaining the lights so [they]

were working properly." Smith also alleged that the City "knew or should

1Smith also asserted "claims" of "respondeat superior" and
"fictitious parties." However, the doctrine of "respondeat superior" is a
theory of liability, not a legal claim. See O'Bryan v. Holy See, 556 F.3d
361, 370 n.1 (6th Cir. 2009) ("Plaintiffs also plead a separate cause of
action titled 'Respondeat Superior Liability.' However, respondeat
superior is not a cause of action. It is a basis for holding the [defendant]
responsible for the acts of its agents."); Holford v. DiFabio, No. 21-02261,
Dec. 6, 2021 (E.D. Pa. 2021) (not reported in Federal Supplement)
("Respondeat superior 'is merely a legal theory by which liability might
be imposed, ... not a claim in its own right."); and Slabon v. Sanchez, No.
15-cv-8965, Sept. 13, 2021 (N.D. Ill. 2021) (not reported in Federal
Supplement) ("[R]espondeat superior is not a claim that can stand on its
own two feet."). Likewise the use of "fictitious parties" is not a legal claim
but, instead, is a method by which a plaintiff may reserve the right to
amend the complaint to add a defendant who is believed to have
contributed to the plaintiff's harm but whose identity the plaintiff does
not yet know. See Rule 9(h), Ala. R. Civ. P. Thus, although Smith
purported to assert five claims in his complaint, he actually asserted only
three cognizable legal claims.
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have known of the non-working lights on [I-59] … through reports to [the

City] by numerous sources, including published news articles, internet

news articles, and television news stories that were aired prior to June

23, 2019." Thus, according to Smith, the City had "made a conscious

decision to ignore this known condition of non-working interstate lights

and the dark conditions of the interstate."

After filing an answer to the complaint, the City filed a motion to

dismiss Smith's claims that alleged wantonness and recklessness. The

circuit court granted that motion, thus leaving as the only remaining

claims Smith's claims of negligence and negligent hiring, training,

supervision and/or retention. The City then filed a motion for a summary

judgment as to those claims, arguing that it was entitled to both

municipal immunity, see § 11-47-190, Ala. Code 1975, and substantive

immunity.

The circuit court held a hearing on the City's summary-judgment

motion and, on September 20, 2024, issued an order denying the motion.

That order states, in relevant part:

"The record on file and counsel for the [City] indicate
that the interstate lighting in question had been converted to
LEDs on or about April 11, 2019. Then, a week later said
lighting apparently malfunctioned and a 'fuse' had to be
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replaced. The fact that a fuse needed to be replaced a week
after converting the lights to LEDs could indicate to an
impartial trier of fact that the City … was on notice that there
was a problem with those particular lamps prior to the [motor-
vehicle accident] which is the subject of this lawsuit. In which
case, a jury should determine whether or not the streetlights
were out, and if they were, did that proximately cause
[Smith's] collision and subsequent injuries.

"The court finds that the remaining issues addressed in
the [City's] motion are questions of fact to be determined by a
jury."

The City timely petitioned this Court for a writ of mandamus, arguing

that it is entitled to a summary judgment because, it says, Smith's claims

are barred by both municipal immunity and substantive immunity.

Standard of Review

"A petition for a writ of mandamus is the appropriate
avenue by which to seek relief from an order denying a claim
of immunity. Ex parte City of Muscle Shoals, 384 So. 3d 37,
40 (Ala. 2023). To prevail on such a petition, the petitioner
must show

" ' "(1) a clear legal right 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) the properly
invoked jurisdiction of the court. Ex parte
Inverness Constr. Co., 775 So. 2d 153, 156 (Ala.
2000)." '

"Ex parte Gulf Health Hosps., Inc., 321 So. 3d 629, 632 (Ala.
2020) (quoting Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272
(Ala. 2001))."
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Ex parte City of Orange Beach, [Ms. SC-2024-0526, Apr. 4, 2025] ___ So.

3d ___, ___ (Ala. 2025).

Analysis

We begin our analysis by reiterating that the only two claims that

remain pending against the City are Smith's claims of negligence and

negligent hiring, training, supervision and/or retention. However, in his

answer to the City's petition, Smith has conceded that "[a] claim for

negligent hiring, training, supervision, and/or retention … is due to be

dismissed." Answer, p. 27. Thus, with respect to that claim, the City is

entitled to relief, and our analysis will therefore focus solely on whether

the City is entitled to a summary judgment on Smith's negligence claim.

As to that claim, the City argues that Smith's claim is barred by both

municipal immunity and substantive immunity, but we address only the

City's substantive-immunity argument because we find that argument

dispositive.

Section 11-47-190 provides, in relevant part:

"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,

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or employee of the municipality engaged in work therefor and
while acting in the line of his or her duty …."

(Emphasis added.) Thus, pursuant to § 11-47-190, "municipalities are

generally chargeable with the negligence of their employees acting within

the line and scope of their employment." 2 Payne v. Shelby Cnty. Comm'n,

12 So. 3d 71, 77 (Ala. Civ. App. 2008). See also Tutwiler Drug Co. v. City

of Birmingham, 418 So. 2d 102, 105 (Ala. 1982) (noting "a municipality's

general liability for the negligence of its employees acting within the line

and scope of their employment").

2Section 11-47-190 also states that cities and towns are liable for

injuries that occur as the result of their

"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 …."

(Emphasis added.) In other words, a municipality has a duty to keep its
streets "free of defects." City of Prichard v. Kelley, 386 So. 2d 403, 405
(Ala. 1980) (plurality opinion). However, Smith does not contend that an
inoperable streetlight constitutes a "defect in the streets," § 11-47-190,
and prior caselaw tends to suggest that it does not. See City of Prichard,
386 So. 2d at 405 (noting that "a defective traffic light" and "a missing
stop sign" "could not realistically be categorized as a physical obstruction
or defect in the street").
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However, "before liability for negligence can be imposed, there must

first be a legal duty owed to the person injured," Graveman v. Wind Drift

Owners' Ass'n, 607 So. 2d 199, 203 (Ala. 1992), and, " ' "[i]n Alabama, the

existence of a legal duty is a strictly legal question to be determined by

the court[s]." ' " DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So.

2d 454, 460 (Ala. 2008) (citations omitted). Enter the doctrine of

substantive immunity, which this Court adopted in 1982 in Rich v. City

of Mobile, 410 So. 2d 385 (1982). The doctrine of substantive immunity

provides that, with respect to certain public services provided by a

municipality -- which, in Rich, were sewer-line inspections -- the

municipality owes no legal duty to any individual and is therefore

immune to any claim for damages that is based on the negligent

performance of such services. As this Court explained in Ex parte City

of Muscle Shoals, 384 So. 3d 37, 41 (Ala. 2023):

"Generally, application of the rule of substantive
immunity

" ' "prevent[s] the imposition of a legal duty, the
breach of which imposes liability, in those narrow
areas of governmental activities essential to the
well-being of the governed, where the imposition
of liability can be reasonably calculated to
materially thwart the City's legitimate efforts to
provide such public services." '
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"Payne v. Shelby Cnty. Comm'n, 12 So. 3d 71, 78 (Ala. Civ.
App. 2008) (quoting Rich, 410 So. 2d at 387)."

This Court has made clear, however, that substantive immunity " 'must

be given operative effect only in the context of those public service

activities of governmental entities … so laden with the public interest as

to outweigh the incidental duty to individual citizens.' " Id. (quoting Rich,

410 So. 2d at 387-88).

The doctrine of substantive immunity is grounded in public-policy

considerations, which are a factor to consider in any case in which a court

must determine whether a legal duty exists. See Rich, 410 So. 2d at 386

(discussing the "overriding public policy reasons" for adopting the

doctrine of substantive immunity); and Smitherman v. McCafferty, 622

So. 2d 322, 324 (Ala. 1993) (noting that, "[i]n determining whether a duty

exists in a given situation, … courts should consider a number of factors,

including public policy"). As this Court recently explained, to subject a

municipality to tort liability " 'in those narrow areas of governmental

activities essential to the well-being of the governed' " would be to

" 'materially thwart the [municipality's] legitimate efforts to provide such

public services' in the first place." Ex parte City of Orange Beach, ___ So.

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3d at ___, ___ (quoting Rich, 410 So. 2d at 387) (emphasis omitted). For

example, with respect to a municipality's decision to provide various

safety inspections, this Court has acknowledged that

" '[t]he fact that the law does not mandate
that a municipality provide inspections in order to
protect the lives and property of its residents tends
to increase the probability that the imposition of
tort liability in this area would serve only to
destroy the municipality's motivation or financial
ability to support this important service.'

"[Hilliard v. City of Huntsville,] 585 So. 2d [889,] 892 [(Ala.
1991)]. In other words, if municipalities are to be held liable
for negligently performing inspections that they are under no
obligation to perform in the first place, then they will likely
simply stop performing the inspections."

Id. at ___. However, substantive immunity is not limited to safety

inspections but, instead, may apply to any public service that a

municipality "provide[s] for the public's safety, health, and general

welfare." Ex parte City of Muscle Shoals, 384 So. 3d at 44. See id. at 41

("In announcing this rule of 'substantive immunity,' the [Rich] Court did

not restrict the application of the rule to sewer-line-inspection cases ….").

The City argues that substantive immunity applies in this case, i.e.,

that it owed no legal duty to Smith to maintain operable streetlights on

that part of I-59 where his accident occurred, and it argues that allowing

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Smith's negligence claim to proceed would "subject [the City] to suit and

liability for every nighttime accident on the interstate." Petition, p. 26.

That, the City argues, "is specifically what substantive immunity [was]

designed to prevent." Id. at 26-27. Smith argues in response that the

City may be held liable for his injuries because, he says, the City has

"acknowledg[ed] its duty" to maintain certain streetlights on I-59 but

then "failed to act in a reasonable manner" by ensuring that those

streetlights remained operable. Answer, p. 22. Thus, we must determine

whether substantive immunity should apply to this type of public service,

i.e., the maintenance of streetlights, or whether the City owed Smith (and

other individuals) a legal duty to maintain the streetlights on that part

of I-59 where Smith's accident occurred.

In making this determination, we begin by noting that we are not

aware of any statute that requires a municipality to provide or maintain

streetlights on an interstate highway (or any other roadway) that lies

within the municipality's territorial limits. We also are not aware of any

such requirement under the common law, and other jurisdictions have

explained that a municipality has no common-law duty to provide or

maintain streetlights. See, e.g., Fishbaugh v. Utah Power & Light, 969

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P.2d 403, 405, 406 (Utah 1998) (noting that " '[a] municipality has no

common-law duty to light its streets' " and that, "[b]ecause a municipality

has no common law duty to light its streets, it has no duty to maintain

such lights that it has nevertheless elected to install" (quoting 19 Eugene

McQuillin, The Law of Municipal Corporations § 54.101 (3d ed. 1994))).

A municipality does have a duty to warn of a dangerous condition in or

near a street, and, thus, this duty might require a municipality to provide

and maintain streetlights in some specific situations. See Hale v. City of

Tuscaloosa, 449 So. 2d 1243, 1246 (Ala. 1984) ("A city … has a duty to

warn of a dangerous condition on or near the roadway."); and City of

Birmingham v. Cox, 230 Ala. 99, 101, 159 So. 818, 820 (1935) (noting

that, " 'where there are dangerous obstructions, declivities, or

excavations in or near [a] street,' " a municipality has a duty, upon

receiving notice of the defect, " 'to take proper precautions to guard

against accidents by the use of railings, barriers, lights or the like,

especially at night' " (emphasis added; citation omitted)). However, even

if that duty applies to an interstate highway, it is not applicable in this

case because Smith's accident did not occur as the result of a dangerous

condition in I-59 itself. See Mixon v. Pacific Gas & Elec. Co., 207 Cal.

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App. 4th 124, 137, 142 Cal. Rptr. 3d 633, 644 (2012) (noting that

"diminished visibility that comes with nightfall is not evidence of a

dangerous condition" in a roadway).

That said, Smith correctly notes that, although it was under no

statutory or common-law duty to do so, the City voluntarily assumed the

responsibility of maintaining the streetlights on that part of I-59 where

his accident occurred. Fowler, the director of the City's Department of

Transportation, testified as follows during his deposition:

"Q. [By Smith's counsel] … Let's … talk a little bit in
general about lighting, okay. We know this accident
happened on the interstate?

"A. Correct.

"Q. And … a lot of times there's an interplay of
jurisdictions on interstate highways; is that correct?

"A. Yes.

"Q. Okay. In certain areas, certain governmental
entities are responsible for upkeep and maintenance; is that
right?

"A. Yes.

"Q. In this area here, we know that you've got an
interstate highway, okay. Who is responsible for the general
maintenance on the interstate highway in this area?

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"A. My understanding is that the City of Birmingham is
responsible for the maintenance of the lighting.

"Q. Okay. How was that determined? Because we know
an interstate system has different jurisdictions. What's your
understanding of when the City is responsible for it as
opposed to the county, the state, or the federal government?

"A. Sure. My understanding is that when the interstate
was built or when it was last worked on as a part of a
significant project, particularly the lighting, when it's
installed, the State of Alabama … asks the cities, the
municipalities, to sign maintenance agreements. That's
pretty standard throughout Birmingham and throughout the
state. So while I have not seen the exact document for that
section, it seems like based on standards for elsewhere in the
system, I believe that the City of Birmingham is responsible
for the maintenance in this section of the lighting.

"Q. By virtue of an agreement with the State?

"A. Probably so.

"….

"Q. So it's not necessarily … that a law says in certain
instances the City does it and the State … does it …. It's the
City agrees with the State to maintain the light system?

"A. I'm not aware of a law, but it's common to use
maintenance agreements between the municipalities and the
State."

However, contrary to Smith's belief, the fact that a municipality

voluntarily accepts the responsibility of performing a public service does

not necessarily mean that it has imposed upon itself a legal duty, " ' "the
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breach of which imposes liability." ' " Ex parte City of Muscle Shoals, 384

So. 3d at 41 (citations omitted). Indeed, substantive immunity often

shields municipalities from liability when they have voluntarily chosen

to perform certain public services that they were under no obligation to

perform -- namely, those services that are " 'for the public health, safety,

and general welfare of its citizenry' " and are therefore " 'essential to the

well-being of the governed.' " Id. (citation omitted). See, e.g., Hilliard v.

City of Huntsville, 585 So. 2d 889, 892 (Ala. 1991) (holding that the City

of Huntsville could not be held liable for damages stemming from an

allegedly negligent electrical inspection that, "although not required by

law to do so," the city had elected to perform); and Nichols v. Town of

Mount Vernon, 504 So. 2d 732, 733 (Ala. 1987) (holding that the Town of

Mount Vernon could not be held liable for the plaintiff's injuries, despite

the fact that the town had "assumed a duty which the law d[id] not

require of it, and, having assumed that duty," had allegedly breached it).3

3In City of Prichard v. Kelley, 386 So. 2d 403 (Ala. 1980), a plurality

of this Court held that, although the City of Prichard had no duty to erect
a stop sign, once it chose to do so, it had a duty to maintain the sign and
that its failure to do so exposed it to liability under "principles of ordinary
negligence":

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Regarding the public service at issue here -- the maintenance of

streetlights -- caselaw from other jurisdictions supports the conclusion

that a municipality owes no legal duty to any individual based on its

voluntary choice to assume the responsibility of maintaining streetlights

because that service is provided for the safety and benefit of the general

public. In Cimato v. City of Lackawanna, 158 A.D.2d 1000, 551 N.Y.S.2d

148 (1990), the plaintiff filed a negligence claim against the City of

Lackawanna, alleging that his injuries had occurred because the city had

failed to maintain the streetlights on a state highway. The plaintiff

conceded that the city had no statutory or common-law duty to provide

" 'Alabama clearly recognizes the doctrine
that one who volunteers to act, though under no
duty to do so, is thereafter charged with the duty
of acting with due care and is liable for negligence
in connection therewith. See, e.g., Robinson v.
Harris, 370 So. 2d 961 (Ala. 1979); United States
Fidelity & Guaranty Co. v. Jones, 356 So. 2d 596
(Ala. 1978); Beasley v. MacDonald Engineering
Co., 287 Ala. 189, 249 So. 2d 844 (1971).'

"Applying this principle of law to the present case, we hold
that in erecting the stop sign at Broadway and Main, the City
of Prichard volunteered to act and was thereafter charged
with the responsibility of acting with due care."

Id. at 406-07. However, City of Prichard was decided before this Court
adopted the doctrine of substantive immunity in Rich.
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and maintain those streetlights, but he argued that, because the city had

"voluntarily assumed the duty to provide and maintain street

illumination, a 'special relationship' with plaintiff was created which

required [the city] to exercise ordinary care in the performance of the

duty it voluntarily assumed …." 158 A.D.2d at 1000, 551 N.Y.S.2d at

148. The Appellate Division for the Fourth Department of the New York

Supreme Court rejected that argument and, in support of its holding,

stated:

"In order to establish a prima facie case of negligence, [a]
plaintiff must demonstrate the existence of a duty owed by the
defendant to him …. [The City of Lackawanna's] action in
providing the illumination along that portion of the State
highway where plaintiff's accident occurred was not 'to protect
the interests of any individual except as they secure to all
members of the community the enjoyment of rights and
privileges to which they are entitled only as members of the
public. Neglect in the performance of such requirements
creates no civil liability to individuals.' "

158 A.D.2d at 1000, 551 N.Y.S.2d at 148-49 (emphasis added; citation

omitted).

In Georgantonis v. Reading, 156 N.E.3d 1037, 1045 (Ohio Ct. App.

2020), the Ohio Court of Appeals held that the City of Reading was

entitled to immunity with respect to claims alleging its negligent

"operation and maintenance of a street-lighting system," and, in support
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of its holding, the court noted that "street lighting on a public street … is

for the common good of all citizens of the state[] and … promotes or

preserves the public peace, health, safety or welfare." Other courts have

likewise noted, though not always in the context of addressing a

municipality's immunity, that streetlights are generally provided for the

safety and benefit of the general public. See Okeson v. City of Seattle,

150 Wash. 2d 540, 550, 78 P.3d 1279, 1285 (2003) ("Providing streetlights

… is a governmental function [that] operate[s] for the benefit of the

general public, and not for the 'comfort and use' of individual

customers."); Miller v. Incorporated Town of Milford, 224 Iowa 753, 276

N.W. 826, 833 (1937) ("In exercising its powers to light streets, a town is

acting in its governmental capacity and provides for the safety and

protection of its citizens and their property and preservation of good

order."); Wicks v. Salt Lake City, 60 Utah 265, 208 P. 538, 539 (1922)

("The primary purpose of lighting a street is to afford[] comfort, safety,

and convenience to those who use the street …. This is certainly a public

purpose."); and City of Little Rock v. Holland, 184 Ark. 381, 42 S.W.2d

383, 384 (1931) (noting that, "in lighting its streets," a municipality "is

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engaged in the performance of a necessary governmental function,

necessary for the convenience and safety of the public").

We agree with those courts. By maintaining the streetlights on an

interstate highway, a municipality "provide[s] for the public's safety,

health, and general welfare," Ex parte City of Muscle Shoals, 384 So. 3d

at 44, or, stated differently, it provides a public service that is " ' "essential

to the well-being of the governed," ' " especially given an interstate

highway's extensive volume of high-speed traffic. Id. at 41 (citations

omitted). It is also a service that a municipality provides to countless

motorists -- not only its own citizens but also out-of-town and out-of-state

motorists -- and is therefore a service that is " 'so laden with the public

interest as to outweigh the incidental duty to individual citizens.' " Id.

(citation omitted). In other words, " '[a]ny … duty [on the part of a

municipality] to [maintain the streetlights on an interstate highway is a

duty] owed to the public at large rather than to any individual.' " Ex parte

City of Orange Beach, ___ So. 3d at ___ (citation omitted). With respect

to other public services that fit this bill, this Court has not hesitated to

hold that substantive immunity applies. See, e.g., Hilliard, supra

(electrical inspections); Ex parte City of Tuskegee, 295 So. 3d 625 (Ala.

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2019) (plurality opinion) (smoke-detector inspections); Ex parte City of

Orange Beach, supra (alleged failure to ensure that a contractor's

construction of a subdivision complied with zoning ordinances); Rich,

supra (sewer-line inspections); Ex parte City of Muscle Shoals, supra

(enforcement of ordinances regarding drainage systems); and Calogrides

v. City of Mobile, 475 So. 2d 560 (Ala. 1985) (determination regarding

how much police protection was required for a city-sponsored event).

We also cannot ignore the public-policy considerations that in Rich,

supra, gave rise to the doctrine of substantive immunity in the first place.

As we have already explained, a municipality has no statutory or

common-law duty to maintain the streetlights on an interstate highway,

but, according to Fowler, municipalities in Alabama commonly agree to

perform this maintenance on behalf of the state government. It stands

to reason, then, that if municipalities are subjected to tort liability for

voluntarily agreeing to provide this important public service, then they

"will likely simply stop performing" the service, Ex parte City of Orange

Beach, ___ So. 3d at ___, which would be a disadvantage to everyone who

travels on those parts of an interstate highway that lie within a

municipality's territorial limits. Stated differently,

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"[t]he fact that the law does not mandate that a
municipality [maintain the streetlights on an interstate
highway] in order to protect the lives and property of its
residents tends to increase the probability that the imposition
of tort liability in this area would serve only to destroy the
municipality's motivation or financial ability to support this
important service."

Hilliard, 585 So. 2d at 892. Indeed, to hold that the City owes Smith and

other individuals a legal duty to maintain certain streetlights on I-59

would essentially require the City to constantly and simultaneously

monitor what are likely hundreds of streetlights so that it can

immediately repair any and all inoperable streetlights before an accident

occurs. See Petition, p. 26 (noting that the denial of substantive

immunity "would require perpetual inspections" of the streetlights on I-

59). This seems a particularly onerous task, if not an impossible one to

perform, which tends to strengthen the likelihood that allowing tort

liability in this area would simply encourage the City to stop agreeing to

perform this important public service. See White v. Southern California

Edison Co., 25 Cal. App. 4th 442, 451, 30 Cal. Rptr. 2d 431, 437 (1994)

(noting "the large number of streetlights" and "the likelihood that

streetlights will become periodically inoperable" in holding that the

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defendant did not owe the plaintiff a legal duty to maintain streetlights

that the defendant had contracted to maintain).

We therefore hold that, when a municipality " ' "chooses to provide

for the public health, safety, and general welfare of its citizenry," ' " Ex

parte City of Orange Beach, ___ So. 3d at ___ (citations omitted), by

voluntarily assuming the responsibility of maintaining the streetlights

on an interstate highway, it does not impose upon itself a legal duty of

care to an individual who is allegedly injured as the result of inoperable

streetlights. Thus, in the absence of a legal duty to that individual, the

municipality cannot be held liable for his or her injuries, Graveman,

supra, which is simply another way of saying that the doctrine of

substantive immunity bars any claim against the municipality that seeks

compensation for those injuries.

Conclusion

The City is entitled to substantive immunity with respect to Smith's

negligence claim, and Smith has conceded that his claim of negligent

hiring, training, supervision and/or retention is due to be dismissed.

Thus, we grant the City's petition for a writ of mandamus and direct the

circuit court to enter a summary judgment in favor of the City.

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PETITION GRANTED; WRIT ISSUED.

Stewart, C.J., and Shaw, Wise, Bryan, Cook, and Lewis, JJ., concur.

Sellers and Mendheim, JJ., concur in the result.

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