Ex parte City of Muscle Shoals, [Ms. 1160396, Feb. 23, 2018] __ So. 3d __ (Ala. 2018). This per curiam opinion (Stuart, C.J., and Bolin, Parker, Main, Wise, Bryan, Sellers, and Mendheim, JJ., concur), issues a writ of mandamus to the Colbert Circuit Court directing dismissal of a negligence action against the City of Muscle Shoals on the ground of municipal immunity.
Plaintiff Harden alleged he was injured when he stepped into a twenty-five-year-old grate covering a drain in a Muscle Shoals city park. Ms. *2. The City moved for summary judgment based upon municipal immunity, Ala. Code § 11-47-190. The circuit court denied that motion.
In issuing the writ of mandamus, the Court noted that if there is a genuine issue as to any material fact on whether the movant is entitled to immunity, then summary judgment is not appropriate. However, the Court noted that “the availability of immunity ‘is ultimately a question of law to be determined by the court.’” Ms. *13, quoting Suttles v. Roy, 75 So. 3d 90, 100 (Ala. 2010).
Because the City filed a properly supported motion for summary judgment, the burden shifted to Harden to present “substantial evidence of ‘neglect, carelessness, or unskillfulness’ by a municipal agent, officer, or employee, or to present substantial evidence that the municipality had actual or constructive notice of a defect and failed to remedy it and that such negligence or defect caused the plaintiff’s injuries.” Ms. *15. Regarding Harden’s claim for negligent failure to repair the defective grate, the Court pointed out that the existence of a duty is not always a question of law for the Court. Instead, the Court reiterated that “‘where the facts upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury.’” Ms. *12 (quoting Garner v. Covington Cty., 624 So. 2d 1346, 1349-50 (Ala. 1993)(internal quote marks omitted). The Court held that the City was entitled to summary judgment because there was no evidence “indicating that the City had any notice that the grate was, in fact, defective.” Ms. *16.
The Court specifically rejected Harden’s res ipsa loquitur argument, holding that because “‘“the owner of a premises ... is not an insurer of the safety of his invitees ... and the principle of res ipsa loquitur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury to an invitee.”’” Ms. *16, n. 2, quoting Ex parte Harold L. Martin Distrib. Co., 769 So. 2d 313, 314 (Ala. 2000), quoting in turn, Tice v. Tice, 361 So. 2d 1051, 1052 (Ala. 1978).