Rel: June 26, 2026
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, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026
SC-2025-0293
The City of Mountain Brook
v.
Rodney E. Miller and Mary Leah Miller
Appeal from Jefferson Circuit Court
(CV-24-901073)
PER CURIAM.
On May 15, 2023, the home and property owned by the plaintiffs,
Rodney E. Miller and Mary Leah Miller, in Mountain Brook was flooded
SC-2025-0293
with several feet of water, causing over $80,000 in damages. This was
only two weeks after they had purchased the property. According to the
Millers, the flooding occurred after stormwater overflowed through the
drain inlets in the City's drainpipes and released water onto their
property.
In March 2024, the Millers sued the City of Mountain Brook ("the
City") in the Jefferson Circuit Court. In their amended complaint filed
one month later, the Millers alleged claims of negligent maintenance,
trespass, and nuisance. Their allegations were based on the theory that,
despite being made aware of the flooding issues on their property and in
other areas and despite being made aware that its drainage system was
no longer adequate to handle the amount of stormwater that was being
drained through it, the City chose not to upgrade the drainage system.
This, they alleged, was a breach of the City's duty under Alabama law.
They thus sought injunctive relief and damages.
Following discovery, the Millers filed a motion for a partial
summary judgment, making these same arguments. In its response in
opposition to the Millers' motion, the City argued, among other things,
that it did not owe an individual duty to the Millers to upgrade its
2
SC-2025-0293
stormwater-drainage system because such services are public services
and any action taken related to that system necessarily implicates a duty
owed to the public at large. It also argued that Alabama law makes clear
that a municipality only owes a duty to an individual property owner not
to negligently design, construct, or maintain its stormwater-drainage
system so that it does not cause damage to that person's property.
Because the Millers failed to produce substantial evidence that there
were any maintenance issues with the City's drainpipes and drain inlets,
such as blockages, the City argued that the Millers were not entitled to
an offensive summary judgment in their favor and that it was, instead,
entitled to a summary judgment in its favor.
Following a hearing, the trial court granted the Millers' summaryjudgment motion. It also awarded them $80,441.15 in damages and
granted the Millers' request to permanently enjoin the City from further
flooding their property. It denied the City's motion for a summary
judgment.
The City now appeals. While our caselaw holds that Alabama law
authorizes a municipality to build a stormwater-drainage system, it also
recognizes that a municipality is not required to do so. If a municipality
3
SC-2025-0293
decides to take such action, it then owes a duty to individual landowners
not to design, construct, or maintain that system in a negligent manner.
In our view, a municipality's decision whether to upgrade its
stormwater-drainage system is due to be treated in the same manner as
its decision to build that system in the first place. Both decisions impact
the community, not just a single resident. Both decisions also involve
resolving competing wishes of different groups of constituents and
balancing large budget priorities. In short, both are questions for an
elected political body. The facts of this case amply demonstrate each of
these circumstances.
For the reasons stated below, we hold that the City did not owe an
individual duty to the Millers to upgrade its stormwater-drainage
system. We therefore reverse the trial court's summary judgment in favor
of the Millers and remand the case for that court to enter a summary
judgment in the City's favor on that basis.
Facts and Procedural History
The record indicates that the City's drainpipes have been in place
since at least 1928. Those pipes are part of a larger network of the City's
stormwater-drainage infrastructure in the area of Canterbury Road,
4
SC-2025-0293
Montevallo Road, Surrey Road, and Overhill Road located near Mountain
Brook Village. The Millers' property is located on Montevallo Road.
The City's drainpipes and drain inlets at issue here are part of a 12-foot-wide stormwater-drainage easement (highlighted below) that runs
along the rear lot lines of the Millers' neighbors' properties (Lots 266,
267, 268, and 269) and the rear lot line of the Millers' property (Lot 265).1
1We note that the record does not contain an actual deed for the
easement; however, the parties do not dispute that the City had a
dedicated "storm drain" easement here, and the record contains a copy of
the subdivision plat for Mountain Brook Estates, which appears to
constitute the deeding of the easement to the City.
5
SC-2025-0293
(Zoomed in.) Although there is no direct evidence of who placed the pipes
in the easement and no direct evidence of who owns the pipes in the
easement, both sides treat them as being owned by the City.2
Those pipes are connected to a separate 36-inch reinforce-concrete
pipe that traverses diagonally across the Millers' property (shown in
yellow below).3
2The City was incorporated in 1942. We assume that the county
owned the easements and the pipes before that and that they became the
property of the City when it became incorporated. The parties do not
argue otherwise.
3This image was presented to our Court by the Millers' counsel
during oral argument on March 4, 2026, with no objection from the City.
6
SC-2025-0293
This pipe has drain inlets that receive stormwater from surrounding
properties and then channels that stormwater into the City's drainpipes.
I. The Engineering Studies Conducted on the City's StormwaterDrainage System Near and Around the Millers' Property
It is undisputed that Montevallo Road, Canterbury Road, Surrey
Road, and Overhill Road have a long history of flooding. Over the years,
the City has hired different engineering firms to study the flooding in
those areas. Those studies revealed that the City's drainpipes and drain
inlets have become "undersized" because of the development throughout
the City over the years and, as a result, have a tendency to "surcharge"
during heavy rain events.
According to the record, "surcharging" occurs when the capacity of
a drainpipe is overloaded. Typically, the drain inlets capture the
stormwater and direct the stormwater underground to the City's
drainage system. However, when the drainpipes are overwhelmed, the
reverse occurs and water surcharges out of the drain inlets onto
surrounding properties, thus flooding those properties. This is what has
allegedly been occurring at the Millers' property and their neighbors'
properties.
In the 1950s, Schoel Engineering Company ("Schoel Engineering")
7
SC-2025-0293
investigated the drainage issues in the area, including at the Millers'
property. At that time, Schoel Engineering documented those issues as
"problematic."
In the early 2000s, the City retained Hill Engineering to again
study the drainage issues in the area ("the Hill Engineering study"). The
Hill Engineering study led to a proposal to widen certain channels in the
area and replace some pipes with culverts. However, the study was met
with resistance from the City's residents who were located downstream
from the Millers' property. Ultimately, the City chose not to implement
the proposal from the Hill Engineering study.
In 2021 and 2022, the City retained Schoel Engineering to perform
another hydrological study where "[c]ertain properties along Canterbury
Road, Montevallo, Surrey and Overhill Road have historically flooded,"
including the Millers' property. In April 2022, Schoel Engineering
presented its findings to the City in a preliminary report outlining a
three-phase project to upgrade and enlarge stormwater infrastructure in
this area. In that report, Schoel Engineering stated that the total
estimated cost of all three phases of the project would be $3,944,000.
In an affidavit the City provided to the trial court, Walter Schoel,
8
SC-2025-0293
the current senior principal at Schoel Engineering, gave his explanation
of the findings contained in that report. According to Schoel, all three
phases of the project had to be performed to mitigate (but not fix) flooding
issues in the area. He explained that Schoel Engineering's "ultimate
opinion which is conveyed to the City, is that the City should not
undertake the drainage improvement project because the cost of the
project outweighed the marginal benefit it provided." (Emphasis added.)
He further explained that "it was determined that the implementation of
the drainage improvement project would likely cause downstream
impacts" and, as a result, that "the project would have to be extended
downstream to mitigate the expected impacts, which would have
significantly increased the overall cost of the project." (Emphasis added.)
With respect to the Millers' property specifically, Schoel noted that
"the proposed drainage project would not reasonably mitigate flooding at
the residence located at [the Millers' property]." (Emphasis added.)
Schoel explained that, based on Schoel Engineering's studies and
modeling, it was determined "that the project would not meaningfully
improve conditions at [the Millers' property]," because the flooding
experienced on the property was primarily due to the low elevation of the
9
SC-2025-0293
finished basement relative to the adjacent stormwater infrastructure and
topography.
According to the City, like the Hill Engineering study, the 2021-2022 Schoel Engineering study was met with resistance from its citizens.
One of the residents who opposed the earlier Hill Engineering study
again voiced concerns about the downstream effects of the three-phase
project, noting that "these problems have been going on for years" and
that he had taken measures to prevent flooding on his own property
which had been effective.
Numerous citizens objected to the three-phase project, stating that
if additional water were added to stormwater infrastructure located near
their downstream properties, as Schoel Engineering's study projected,
then "the damage will be extraordinary." Those citizens further claimed
that the project would "harm many more residents than it will help" and
that, "[i]f the plan goes forward and [they] are faced with the prospect of
dealing with the inevitable damage that 14 additional inches of water
will cause, [they] will have no choice but to utilize all available legal
remedies." (Emphasis added.) See also C. 811-12 (resident email to the
City's manager stating that "[s]everal of the residents downstream are
10
SC-2025-0293
very concerned about the downstream impact of the project" and are
"100% opposed" to it).
Additionally, like the Hill Engineering study, Schoel Engineering's
three-phase project would have required the City to obtain additional
easements to perform/construct the project. According to Billy Pritchard,
a member of the city council, at least one resident not only indicated that
he would refuse to grant the City a construction easement for the project
but also threatened legal action if the City moved forward with it. After
considering all of these factors, the City decided not to move forward with
the three-phase project.
II. Prior Flooding of the Millers' Property
It is undisputed that, since the 1950s, the Millers' property has
experienced occasional flooding. It also appears undisputed that the
frequency and severity of that flooding has increased over time. The first
instance of flooding reflected in the record occurred in August 1957.
Following that incident, the City's manager received a letter from Schoel
Engineering that discussed the "drainage problem" at the property and
at an adjacent property located on Overhill Road.
In 2004, Steve Griffin, a prior owner of the Millers' property, hired
11
SC-2025-0293
Schoel Engineering's chief hydrologist David Hains to study the flooding
issues on the property. During the course of his study, Hains observed at
least one flooding event at the property, which occurred in September
2004. Hains later wrote a letter that set forth Schoel Engineering's
preliminary recommendations for mitigating flooding at the property. In
an affidavit submitted to the trial court by the City, Hains explained that
that letter
"informed Mr. Griffin that he may be able to take flood
proofing measures, such as by flood proofing the garage door
openings, to reduce the severity of flooding in the house …. I
also noted that there could possibly be additional measures
taken by [the City] to mitigate flooding. However, at the time
of this letter, Schoel [Engineering] had not performed an
engineering analysis of the potential stormwater drainage
improvements that the City may be able to perform in this
area. Subsequent to this letter, Schoel [Engineering] studied
the issue, and we determined that there were not any
improvements the City could perform which would solve the
flooding problems at [the property], and the engagement with
Mr. Griffin ended."
(Emphasis added.) According to Hains, Griffin "never developed a plan
or took any preventative measures to effectively flood proof the basement
of [the property]."
In December 2020, Archie and Paige Andrews purchased the
property. Over the next two years, the property flooded six more times,
12
SC-2025-0293
allegedly causing hundreds of thousands of dollars' worth of damage to
the Andrewses' home and their personal belongings.4
On May 5, 2023, the Andrewses sold the property to the Millers.
Before that sale, the Millers received a home-inspection report that noted
the following:
"The driveway is equipped with several catch basins with
underground drains that eventually drain into a sump pump
…. Looks like this house has had plenty of drainage work.
Check the operations of the drains and pump during a good
soaking rain to make sure all works well. You don't want
water to back up into the garage areas."
Elsewhere in the report, the inspector noted that the house "had some
serious drainage work done" and that he "suspect[ed] maybe it flooded in
the past." The inspector thus recommended that the Millers "[c]onsult
4On July 25, 2022, the Andrewses filed a sworn "notice of claim"
with the City. Alabama law requires that a municipality be put on notice
of tort claims against it "within six months from the accrual thereof or
[those claims] shall be barred." § 11-47-23, Ala. Code 1975. In their
"notice of claim," the Andrewses stated that the property had flooded six
times since it was purchased in 2020, causing hundreds of thousands of
dollars' worth of damage to the home and their personal belongings.
Although the Andrewses stated in their notice of claim that they would
bring claims of trespass, nuisance, negligence, and inverse condemnation
against the City if the City did not pay them $300,000 and "remedy the
flooding issues immediately," there is nothing in the record that indicates that they did so or that the City paid this claim.
13
SC-2025-0293
[with] the current owner for more information" because they "may need
flood insurance just for good measure." According to the Millers, despite
asking direct questions regarding whether the property had ever flooded,
the property's history of significant flooding was never disclosed to them.5
III. The May 15, 2023, Rain Event
On May 15, 2023, 10 days after the Millers purchased the property
from the Andrewses, it flooded. According to the Millers, their basement,
garage, and driveway flooded, resulting in over $80,000 worth of damage
to their property and personal belongings. They emphasized the force of
the water rushing into the playroom in the basement and the harm that
could have been caused to their children had they been in their playroom.
It is undisputed that flooding occurred not only on the Millers'
property but in several other areas around the City. It is also undisputed
that the flooding of the Millers' property was not caused by any blockage,
clog, or obstruction of the City's drainpipe system or by a collapsed pipe
in the system.6 Rather, the flooding was caused by the City's stormwater
5The record does not indicate whether the Millers brought suit
against the Andrewses as a result of this.
6This was confirmed by a video inspection of the City's drainage
system after the flooding event.
14
SC-2025-0293
drainpipes and drain inlets becoming overwhelmed with stormwater and
surcharging.
The City contends that the rain event that caused the flooding was
"exceptionally severe" and was beyond the designed capacity of the
stormwater-drainage system near and around the Millers' property. The
City also contends that the event would have been beyond the capability
of any modern-day drainage system.
Following that flooding incident, the Andrewses assigned a floodinsurance policy to the Millers for the property. The Millers subsequently
made a claim under that policy and received payment for their losses
from the flooding event. Almost six months after the flooding occurred,
on November 9, 2023, they submitted a "notice of claim" to the City
concerning the flooding at the property and stating that they hoped they
could continue to work with the City to resolve the issue.
IV. The Millers' Underlying Lawsuit Against the City
In March 2024, the Millers filed suit against the City. In their
amended complaint filed one month later, the Millers alleged claims of
negligent maintenance, trespass, and nuisance on the basis that the
City's drainage "system" had "become" inadequate and that the City's
15
SC-2025-0293
pipes are too small for the stormwater being directed to them.
In particular, the Millers alleged that, despite being made aware of
the flooding issues on their property and in other areas, the City
repeatedly failed to try to fix the drainage and flooding issues caused by
its drainage system. Specifically, the Millers alleged:
"73. In general, a municipality does not have a duty to
maintain proper drainage of stormwater.
"74. Ala. Code [1975,] § 11-50-50, however, authorizes
municipalities, like [the City], to make necessary provisions
for stormwater drainage and 'maintain efficient' stormwater
drainage systems.
"75. Once the authority is exercised by a municipality, a
duty arises to maintain the drainage system in such a
condition that the water cast into the drainage system does
not cause it to overflow.
"76. [The City] has exercised its authority and
undertaken control of the stormwater drainage in [the
Millers'] area.
"77. [The City's] drainage system in [the Millers'] area
is no longer adequate.
"78. [The City's] drainage system has become
overloaded, which has rendered its pipes too small for the
services now required of them.
"79. [The City] has allowed this condition to exist even
after being notified of the problem.
16
SC-2025-0293
"80. [The City's] pipes have become overburdened,
rendering them undersized and resulting in stormwater
backing up, overtopping of the drains near [the Millers']
property, and the flooding of [the Millers'] property.
"81. The flooding at [the Millers'] property and home
originated from [the City's] drainage system.
"82. [The City] has breached its duty by failing to
maintain its drainage system."
(Emphasis added.) The Millers further alleged that the City's failure to
maintain its drainage system has not only interfered with their use and
enjoyment of their property because of the flooding, but has also "invaded
[their] property in such a manner as to affect [their] interest in the
exclusive possession of their property." Accordingly, the Millers sought
damages and an injunction to "abate[] the nuisance, protect [them] from
[the City's] trespass, and prohibit[] [the City] from flooding [their]
property."
On May 10, 2024, the City filed its answer to the Millers' amended
complaint in which it denied the claims against it. The City also alleged
various affirmative defenses.
V. The Summary-Judgment Motions Filed by the Parties
Following discovery, on November 20, 2024, the Millers filed a
17
SC-2025-0293
motion for a partial summary judgment in which they argued that they
were entitled to a judgment in their favor on their nuisance and trespass
claims.7 Relying on this Court's prior decision in City of Mountain Brook
v. Beatty, 292 Ala. 398, 295 So. 2d 388 (1974), the Millers argued that
the fact that the City's drainpipes and drain inlets at issue are
maintained in an easement that the City possesses over properties
located on Montevallo Road, Canterbury Road, Overhill Road, and Surrey
Road, including their own property, does not give the City the right to
flood that property outside of its easement. Specifically, the Millers
argued that, like in Beatty, the City had a duty to maintain the
drainpipes and drain inlets in its drainage easement so as not to cause
an overflow of water onto their property. According to the Millers, despite
having engineering firms telling it that replacing its undersized
drainpipes and drain inlets with larger ones could help alleviate this
7According to the record before us, the Millers did not ask for a
summary judgment on their negligent-maintenance claim. Their reason
for not doing so, they said, was that "granting the [permanent] injunction
and awarding the $80,441.15 in damages would nullify the need for a jury
trial on [their] remaining claim, negligent maintenance, as the relief to
be provided in the event of a recovery at trial on the negligent
maintenance claim would be duplicative of the $80,441.15 being sought
with this motion."
18
SC-2025-0293
problem, the City declined to upgrade its drainage system, which led to
a surcharging of water onto their property on May 15, 2023, thus
breaching its duty not to cause them harm or injury. Because the City
breached its duty, the Millers argued that, pursuant to this Court's
decision in Beatty, they were entitled to a summary judgment on their
trespass and nuisance claims along with a permanent injunction against
the City prohibiting it from further flooding their property. They also
requested $80,441.15 in damages.8
In its opposition to the Millers' motion, the City argued, among
other things, that Beatty was distinguishable because the Millers' claims
were based on the allegation that the City's drainage system had become
inadequate over time and not on the City's failure to properly construct
8In support of their summary-judgment motion, the Millers
attached several documents, including, among other things, (1) copies of
plat maps showing where their property and the City's purported
easement are located, (2) a copy of Schoel Engineering's 2022 report
outlining the proposed three-phase project, (3) a copy of a preliminary
plat design created by Schoel Engineering showing the extent of the
changes that would need to be made to the area in and around the Millers'
property to address the flooding issues, (4) some of the engineering
studies that were done in the area surrounding the Millers' property, (5)
depositions of city officials discussing the flooding issues in that area, and (6) a picture showing the flooding that occurred at their home.
19
SC-2025-0293
or maintain its drainage system. Although the City acknowledged that
our caselaw has recognized that a municipality owes a duty not to
negligently design, construct, or maintain a stormwater-drainage
system, it asserted that nothing in that caselaw exposes a municipality
to liability to individual plaintiffs for failing to upgrade its drainage
system. It insisted that any duty to upgrade would, at most, be owed to
the public at large. Because the Millers had failed to make a prima facie
showing that no genuine issue of material fact existed as to whether the
design, construction, or maintenance of the portion of its drainage system
was negligent in any way, the City argued that it did not owe them a duty
to upgrade or expand its stormwater-drainage system on and in the area
around their property. For these reasons the City argued that the Millers
were not entitled to a summary judgment and that it was, instead,
entitled to a summary judgment in its favor.9
9In support of its summary-judgment motion, the City attached a
variety of exhibits, including (1) emails from the City's manager to
homeowners, including the prior owners of the Millers' home, the
Andrewses, in which he explained that even if the City upgraded its
system their properties still would have experienced flooding; (2) images
of the flooding that occurred on the Millers' property when it was owned
by the Andrewses; (3) an affidavit from current city council-member,
Virginia Smith, in which she explained that she has been on the city
council since 2000 and that, during her tenure, the Millers' property "has
20
SC-2025-0293
VI. The Trial Court's Order Entering a Summary Judgment and a
Permanent Injunction in Favor of the Millers and Denying the
City's Summary-Judgment Motion
After the Millers filed their response to the City's motion, a hearing
was held on the parties' respective motions. Following that hearing, on
April 4, 2025, the trial court entered a detailed order in which it granted
the Millers' motion. It also awarded the Millers $80,441.15 in damages
and a permanent injunction against the City.
In support of its decision to enter a summary judgment in favor of
the Millers, the trial court found that the City possessed an easement
that ran along the rear of the Millers' property through which the City
drained its stormwater. Relying on Beatty, supra, the trial court held
that the City had a duty to maintain its drainage easement so as not to
cause an overflow of stormwater onto the Millers' property. Because it
was undisputed that the stormwater at issue originated from the City's
overwhelmed drainpipes and drain inlets within its easement and
because the City knew about this issue for years but did nothing to fix it,
flooded during extremely heavy rain events"; and (4) an affidavit from
David Hains, who had studied the flooding issues at the Millers' property
in 2004, and determined that "there were not any improvements the City
could perform which would solve the flooding problem at" their property.
21
SC-2025-0293
the trial court concluded that it had breached its duty.
As to the Millers' request for a permanent injunction abating the
nuisance and trespass created by the City's overwhelmed drainage
system, the trial court found that the Millers had made a prima facie
showing that no genuine issue of material fact existed as to whether the
City breached the duty it owed to the Millers not to flood their property.
Per Beatty, the trial court determined that the City should be
permanently enjoined from further flooding their property in the future.
Although the Millers did not expressly move for a summary
judgment in their favor on their negligent-maintenance claim, the trial
court nevertheless addressed whether they were also entitled to a
summary judgment on that claim. In doing so, the trial court found that,
even if the present case did not involve the rights and duties of an
easement holder like in Beatty, the Millers still would be entitled to an
injunction abating the nuisance created by the flooding from the City's
overwhelmed drainpipes and drain inlets because it was undisputed that
the development permitted by the City "has adversely impacted [the
City's] drainage system in the area near the [Millers'] property," "that
[the City's] drainpipes at issue are no longer adequate," and that, despite
22
SC-2025-0293
receiving "reasonable remediation plans from the engineering firm it
retained, [the City] has failed to provide appropriate upkeep of its
drainage system."
As to the City's assertion that it was entitled to a summary
judgment in its favor because it did not owe a duty to the Millers to
upgrade its stormwater-drainage system, the trial court explained that
"Alabama law is clear that municipalities have the authority to construct
and maintain stormwater sewers, surface drains, and ditches, and '[o]nce
the authority to construct or maintain a drainage system is exercised, a
duty of care exists, and a municipality may be liable for damages
proximately caused by its negligence.' " (Quoting Kennedy v. City of
Montgomery, 423 So. 2d 187, 188 (Ala. 1982) (internal citations omitted).)
Because the conduct underlying the Millers' claim against the City had
to do with the City's negligent failures to fix the issues with its drainage
system, the trial court found, once again, that, per Beatty, supra, it did
owe the Millers a duty to upgrade that system. It therefore denied the
City's summary-judgment motion.
VII. The Trial Court's Clarification that its Judgment is Final and
the Present Appeal
On April 8, 2024, the parties filed a joint "Motion to Clarify" in
23
SC-2025-0293
which they asked the trial court to clarify that its judgment was final
despite being labeled a "partial" summary judgment in favor of the
Millers. According to the parties, the trial court's judgment was in fact a
complete resolution of all issues between them, including the Millers'
negligent-maintenance claim, given that the trial court's judgment also
addressed the Millers' negligent-maintenance claim. The trial court
entered an order clarifying that its judgment was final and resolved all
issues between the parties. The City then filed the present appeal with
our Court.
Standard of Review
Our Court has recently stated that
"[t]his Court reviews a summary judgment de novo, and
we use the same standard used by the trial court to determine
whether the evidence presented to the trial court presents a
genuine issue of material fact. Nettles v. Pettway, 306 So. 3d
873, 875 (Ala. 2020). 'On motion for summary judgment the
burden is upon the movant to show that no genuine triable
issue of material fact exists.' Amason v. First State Bank of
Lineville, 369 So. 2d 547, 552 (Ala. 1979). … When crossmotions for a summary judgment are filed, 'the burden
remains on each movant to establish the propriety of the court
entering summary judgment on its own motion.' Id. 'The fact
that the first party fails to carry the burden on [its] motion
does not necessarily mean that the other party has carried the
burden under [its] own motion and should be granted
summary judgment.' Id. 'Where cross-motions for a summary
judgment are filed in the trial court, the party whose motion
24
SC-2025-0293
was not granted is entitled to have that motion reviewed on
an appeal from the grant of the opponent's motion.' Mountain
Lakes Dist. v. Oak Grove Methodist Church, 126 So. 3d 172,
180 (Ala. Civ. App. 2013)."
790 Montclair, LLC v. Birmingham Metro, LLC, [Ms. SC-2024-0810, July
3, 2025] ____ So. 3d ____, ____ (Ala. 2025). Additionally, the entry of a
permanent injunction is reviewed de novo. See Sycamore Mgmt. Grp.,
LLC v. Coosa Cable Co., 42 So. 3d 90, 93 (Ala. 2010).
Discussion
On appeal, the City argues that the trial court erred in entering a
summary judgment in favor of the Millers on their tort claims and in
entering a permanent injunction against it. According to the City, no
genuine issue of material fact exists in this case as to whether it owed
the Millers a duty to upgrade its stormwater-drainage system. As a
result, it contends that the trial court should have entered a summary
judgment in its favor.
I. Does a Municipality Owe an Individual Duty to a Property Owner
with Regard to Stormwater Drainage?
In the present case, the Millers alleged negligent-maintenance,
25
SC-2025-0293
nuisance, and trespass10 claims against the City.11 "Part of the courts'
traditional role when hearing a tort claim [against a municipality] is to
determine the scope of a municipality's duties and to whom those duties
are owed." Britt v. City of Hoover, [Ms. SC-2024-0530, May 16, 2025] ____
So. 3d ____, ____ (Ala. 2025) (Mitchell, J., concurring specially) (citing
DiBiasi v. Joe Wheeler Elec. Membership Corp., 988 So. 2d 454, 460 (Ala.
2008) (stressing that " ' " the existence of a duty is a strictly legal question
to be determined by the court." ' " (citations omitted))). "After all, for a
plaintiff to successfully bring a claim in tort, there must first be an
10Although the Millers allege a trespass claim in their amended
complaint, in substance their claim is an indirect-trespass claim because
they are alleging that the stormwater surcharging from the City's
overwhelmed stormwater-drainage system is interfering with their use
and enjoyment of their property. See Borland v. Sanders Lead Co., 369
So. 2d 523, 530 (Ala. 1979) (explaining that "[f]or an indirect invasion to amount to an actionable trespass, there must be an interference with
plaintiff's exclusive possessory interest; that is, through the defendant's intentional conduct, and with reasonable foreseeability, some substance
has entered upon the land itself, affecting its nature and character, and
causing substantial actual damage to the res").
11We note that an inverse-condemnation claim was not pleaded and,
thus, we do not consider the question of whether the flooding here was so
severe as to constitute a taking under the Alabama or federal
constitutions. See generally Long v. City of Athens, 24 So. 3d 1110, 1116-19 (Ala. Civ. App. 2009) (discussing such a claim in the context of flooding but finding it barred by the statute of limitations).
26
SC-2025-0293
underlying duty owed to the plaintiff." Id. (citing Macrum v. Security Tr.
& Sav. Co., 221 Ala. 419, 421, 129 So. 74, 76 (1930) (noting that it is
"axiomatic that there can be no tort action maintained except against one
who owed a duty fixed by law to the plaintiff")).
To be entitled to a summary judgment on their negligentmaintenance and nuisance claims, the Millers had to show that the City
owed them some sort of duty to upgrade its stormwater-drainage system.
See, e.g., Harris v. Board of Water & Sewer Comm'rs of City of Mobile,
294 Ala. 606, 612, 320 So. 2d 624, 629 (1975) (recognizing that, in order
to establish a negligent-maintenance claim in Alabama, the plaintiff
must prove the existence of a duty owed by the defendant); and Tipler v.
McKenzie Tank Lines, 547 So. 2d 438, 440 (Ala. 1989) (recognizing that
a plaintiff must prove the tort elements of duty and causation in order to
make a prima facie case of nuisance). Absent such a showing, not only
must their negligent-maintenance and nuisance claims fail, but their
indirect-trespass claim must also fail. See generally Royal Auto., Inc. v.
City of Vestavia Hills, 995 So. 2d 154, 160 (Ala. 2008) (holding that
"because the businesses' negligent-maintenance claims fail, their
nuisance and trespass claims must also fail").
27
SC-2025-0293
It does not appear that our Court's caselaw has ever directly
addressed whether a municipality owes a duty to an individual property
owner to upgrade a stormwater-drainage system or if such a duty is
instead owed only to the public at large. Thus, we must first determine
what kind of duty is owed by a municipality under circumstances like
those presented in this case before determining whether the trial court
should have entered a summary judgment in the City's favor.
A. Alabama Law Imposes No Duty at All For A Municipality
to Build A Stormwater-Drainage System
Section 11-50-50, Ala. Code 1975, authorizes municipalities to
construct and maintain drainage systems, including stormwaterdrainage systems. Specifically, that statute states:
"All cities and towns may make all needful provisions
for the drainage of such city or town, may construct and
maintain efficient sanitary and stormwater sewers or sewer
systems, either within or without the corporate limits of the
city or town, may construct and maintain ditches, surface
drains, aqueducts, and canals and may build and construct
underground sewers through private or public property,
either within or without the corporate limits of such city or
town, but just compensation must first be made for the private
property taken, injured, or destroyed."
Although our Court has recognized that such authority exists for
municipalities under Alabama law, we have also stated that " ' a
28
SC-2025-0293
municipality is not required to exercise this authority.' " Lee v. City of
Anniston, 722 So. 2d 755, 757 (Ala. 1998) (quoting City of Mobile v.
Jackson, 474 So. 2d 644, 649 (Ala. 1985)). In particular, we have stated
that "[i]n general a municipality has no duty 'to provide and maintain
proper drainage of surface water from a resident's property to prevent
flooding and damage to the property.' " Kennedy v. City of Montgomery,
423 So. 2d 187, 188 (Ala. 1982) (quoting Hendrix v. Creel, 292 Ala. 541,
545, 297 So. 2d 364, 367 (1974)).
Rather, we have recognized that the decision to "provide and
maintain proper drainage" -- that is, the decision to build or not to build
a drainage system -- " ' is a function committed to the municipality which
calls for the exercise of governmental discretion.' " Kennedy, 423 So. 2d
at 188 (quoting Hendrix, 292 Ala. at 545, 297 So. 2d at 367). We have also
stated that, generally, we will not interfere with a municipality's
discretion to build or not to build a stormwater-drainage system. See
Hendrix, 292 Ala. at 545, 297 So. 2d at 367 ("Courts, above all others, are
charged with a very sacred duty not to encroach upon the domain of other
departments of government under our constitutional system of
government." (citing Finch v. State, 271 Ala. 499, 124 So. 2d 825 (1960))).
29
SC-2025-0293
B. If the Municipality Does Construct a Drainage System, It
Owes a Duty to Individuals Not to Negligently Design,
Construct, or Maintain that System
However, if a municipality does decide to construct such a drainage
system, our Court has stated that it " ' may be liable for damages caused
by its negligence.' " Lee, 722 So. 2d at 757 (quoting City of Mobile, 474
So. 2d at 649). "To undertake this service … is to assume a measure of
legal duty in its performance" because city officials are acting "in the
performance of ministerial rather than government functions" and this
is "analogous to that involved in the construction and maintenance of
streets .…" Sisco v. City of Huntsville, 220 Ala. 59, 60, 124 So. 95, 95-96
(1929) (emphasis added). "This reflects the familiar tort principle that
liability may arise from the negligent performance of a voluntary
undertaking." Kennedy, 423 So. 2d at 189 (emphasis added).
We have consistently recognized that the type of negligent conduct
that can subject a municipality to liability with regard to drainage
includes its failure to properly design, construct, or maintain its sewer
and drainage systems. See, e.g., Kennedy, 423 So. 2d at 189 (reversing a
summary judgment in favor of the city and holding that a genuine issue
of material fact existed as to whether the city's failure to provide
30
SC-2025-0293
adequate drainage to prevent the plaintiffs' basement from flooding
amounted to negligent maintenance and constituted a breach of its duty
under § 11-50-50); cf. Long v. Jefferson Cnty., 623 So. 2d 1130 (Ala. 1993)
(holding that a county could be liable for the negligent construction or
maintenance of its sewer across an easement on an individual
homeowner's property).
The Millers have not alleged that the original design or
construction of the drainage system was negligent or that the City would
be responsible for any such negligence should it exist. In fact, in their
reply brief in support of their motion for a partial summary judgment,
the Millers made clear that they did not pursue a negligent-design or
negligent-construction claim against the City in this case. See C. 894
(stating that they "did not pursue a negligent design or construction
claim …."); C. 905 (stating that the Millers "have never contended that
the drainpipes at issue were negligently designed and/or constructed.
Such a claim is not found in [the Millers'] Amended Complaint, [the
Millers'] testimony, or [the Millers'] motion for summary judgment
because it is simply not true."); C. 890 (stating that "the City's strategy
is to (improperly) recast [the Millers'] negligent maintenance claim as a
31
SC-2025-0293
negligent design or construction claim in an effort to avoid liability. Yet,
[the Millers] are the masters of their complaint (which does not contain
the words 'design' or 'construction' let alone a cause of action for negligent
design or construction) and the City cannot rewrite [the Millers']
complaint to avoid liability."); C. 893 (noting that "the City moved for a
summary judgment on negligent design and construction -- a cause of
action that is not asserted in this case").
Instead, the Millers expressly argue that the City negligently failed
to upgrade the stormwater-drainage system, which they argue is
negligent maintenance of the drainage system. See C. 905 (explaining
that their "claim that the drainpipes at issue are no longer adequate
(negligent maintenance) is different from a drainage system being
inadequate at the time the infrastructure was built (negligent design or
construction claim)" (emphasis added)).
Specifically, they argue that, even though the stormwater-drainage
system was adequately sized in the past, it has become inadequate. They
argue that the City knew its system was no longer adequate to handle
the amount of stormwater being drained through it because of increased
development throughout the City over time. They say that a failure to
32
SC-2025-0293
expand or upgrade the system under such circumstances is a classic
example of negligent maintenance for which the City owes them a duty.
See C. 925 (citing Rodney Miller's deposition in which he explained that
their claim against the City "is based off the fact that while the pipe may
have -- the drainage system may have been sufficient to handle capacity
at one point in time; over time, there has been development, and there is
a larger amount of water being directed to it. And because of that, the
pipes are over -- are undersized." (emphasis added)); C.906 ("Plaintiffs
even presented testimony from an expert that drainpipes are selected
based on the level of development when they are installed, which means
that drainpipes that are sufficient when installed may no longer be
adequate today because of the subsequent development and resulting
increase in impervious surface space." (emphasis added)); C. 906 (noting
that the Millers "do not allege that the drainpipes at issue were
improperly designed or constructed nor do [they] allege that the
drainpipes were collapsed, obstructed, or clogged. Rather [the Millers]
allege that the drainpipes at issue are no longer adequate." (emphasis
added)).
i. The Decision Not To Upgrade or Expand a
Stormwater-Drainage System Is Not Equivalent to
33
SC-2025-0293
Negligent Maintenance
The City disputes that the failure to upgrade or expand a drainage
system is equivalent to a failure to maintain that drainage system. In
support of its position, the City relies in part on our Court's prior decision
in Byrd v. City of Citronelle, 937 So. 2d 515 (Ala. 2006), and the Court of
Civil Appeals' decision in Long v. City of Athens, 24 So. 3d 1110 (Ala. Civ.
App. 2009).
In Byrd, supra, a drainage ditch ran across a portion of Byrd's
property that received water from surrounding areas. At some point, the
drainage ditch began to "back up" and flood Byrd's property in excessive
rain events. 937 So. 2d at 517. When the flood water receded, it carried
with it some topsoil from Byrd's property, and her property began to
erode. Byrd then sued the City of Citronelle, alleging, among other
things, that the city negligently maintained the ditch.
In support of her negligent-maintenance claim against the City of
Citronelle, Byrd offered the affidavit testimony of an expert witness, who
"name[d] three specific circumstances that he allege[d] evidence[d] a
breach of the City's duty to adequately maintain the ditch: (1)
obstructions in the ditch, (2) obstruction of the driveway pipes, and (3)
34
SC-2025-0293
improper sloping of the ditch." Id. at 521. In determining that none of
those conditions identified by Byrd's expert witness indicated negligent
maintenance, our Court stated that an obstruction in the ditch was not
necessarily the result of the negligent maintenance thereof. Id. at 522
(discussing Locke v. City of Mobile, 851 So. 2d 446, 450 (Ala. 2002), and
observing that our Court has "stated that an obstruction in a ditch 'does
not necessarily mean negligent maintenance' " ).
The Court also specifically noted that the allegation of a "the lack
of proper slope of the ditch along with the respective driveway culverts"
were "clearly matters of design or construction" rather than
"maintenance" and, therefore, were barred by the statute of limitations.
Id. We therefore affirmed the summary judgment in favor of the City of
Citronelle on Byrd's claims. While not directly reaching the question,
Byrd implies that negligent maintenance is not the same as negligent
failure to upgrade.
More directly, in Long, supra, the Longs brought an action against
the City of Athens alleging claims of negligence, trespass, nuisance, and
inverse condemnation due to alleged flooding of their property by the city.
The Longs purchased approximately 31.5 acres of unimproved property
35
SC-2025-0293
in Athens in 1957, which over time became surrounded by subdivisions,
leading to increased water flow onto their property. The Longs claimed
that the city's drainage systems were responsible for diverting water onto
their land and that the City had a duty to upgrade its systems to prevent
this from continuing to happen. The City of Athens eventually filed a
motion for summary judgment, and the trial court granted the city's
motion.
On appeal, the Court of Civil Appeals rejected the argument that
the City of Athens had a duty to upgrade the drainage system because
such a claim was not a claim alleging failure to maintain. The Longs had
alleged that there had been drainage studies submitted to the city that
detailed the increased flow of water traveling across the Longs' property
and that the city had failed to follow the recommendations of those
studies. Further, they alleged that, by failing to update the drainage
systems to accommodate the increased discharge of surface water from
the developments surrounding the Longs' property, the city had failed to
maintain those systems. Id. at 1115 ("The Longs' theory of recovery for
their claim of negligent maintenance is that, by failing to update the
drainage systems to accommodate the increased discharge of surface
36
SC-2025-0293
water from the developments surrounding the Long property, the City
failed to maintain those systems." (emphasis added)).
Relying on our decision in Byrd, the Court of Civil Appeals
explained that the failure to "enlarg[e] the culverts" and require new
retention ponds -- per the recommendations of various studies conducted
on the city's drainage systems -- were not negligent maintenance. Id. at
1116. Because the Longs failed to present substantial evidence that the
City of Athens did not adequately maintain its drainage systems, the
Court of Civil appeals affirmed the trial court's summary judgment in
favor of the city on the Longs' negligent-maintenance claim. Id.
The Millers do not address Byrd or Long. More importantly, they
also do not point us to any caselaw expressly establishing (1) that a
failure to upgrade is equivalent to negligent maintenance of a drainage
system or (2) that a municipality owes a duty to an individual to upgrade
a stormwater-drainage system.
Instead, the Millers rely on our Court's prior decision in Reichert v.
City of Mobile, 776 So. 2d 761 (Ala. 2000), in which homeowners in the
Greenwich Hills subdivision in Mobile sued the City of Mobile after their
properties were flooded. They alleged negligent design, negligent
37
SC-2025-0293
construction, negligent maintenance, continuing trespass, and
continuing nuisance, all related to the city's stormwater-drainage
system. The Mobile Circuit Court entered a summary judgment in favor
of the city, and the homeowners appealed.
On appeal, the plaintiffs argued, among other things, that the City
of Mobile failed to maintain the system properly, resulting in continued
flooding. The plaintiffs presented expert testimony from licensed
professional engineer who opined, among other things, that subsequent
development in the area had overburdened the stormwater-drainage
system.
Our Court reversed, in part, the summary judgment in favor of the
City of Mobile on the plaintiffs' negligent-maintenance claim after
determining that genuine issues of material fact existed as to whether
the City of Mobile had failed to provide appropriate upkeep of the
stormwater-drainage system.
The Millers' contend that Reichert is applicable here because the
failure to upgrade a stormwater-drainage system is the same as the
failure to upkeep that system and is, thus, a form of negligent
maintenance. However, in Reichert, the claim that survived related to
38
SC-2025-0293
the City of Mobile's duty to upkeep the pipes at issue in their existing
condition -- not a failure to upgrade the pipes. Specifically, our Court
explained:
"Although the negligent-maintenance claims are not
barred by the statute of limitations, the plaintiffs still must
present substantial evidence of negligent maintenance in
order to avoid the entry of a summary judgment against those
claims. In other words, they must present evidence from
which a jury could reasonably conclude that the flooding of
their property was proximately caused by the City's failure to
provide appropriate upkeep for the storm-drainage system in
its existing condition, see City of Birmingham v. Leberte, [773
So. 2d 440 (Ala. 2000)], rather than by the City's failure to
correct any alleged design or construction problems with the
that system, see Williams v. Board of Water & Sewer Comm’rs
of the City of Prichard, 763 So. 2d 938 (Ala. 1999)."
776 So. 2d at 765-66 (emphasis added). Our Court also noted that one
plaintiff testified that the drain near to her home "stopped up big time,"
requiring a vacuum truck from the city, and that another plaintiff
testified that, when she contacted the city regarding the sewer line that
needed to be pumped out, "sometimes the City would not respond." Id.
at 763-64.
In sum, it appears that our Court has never directly decided
whether a failure to upgrade is equivalent to negligent maintenance. In
our view, the decision to upgrade seems to be synonymous with "mak[ing]
39
SC-2025-0293
all needful provisions for … drainage" because that decision involves
taking multiple public-policy factors into consideration in choosing to
build stormwater drainage. See, e.g., § 11-50-50 (providing that
municipalities are authorized by law to "make all needful provisions for
… drainage" through the construction of "stormwater sewers" (emphasis
added)). For instance, upgrading a drainage system would involve the
expenditure of new capital funds to buy new pipes -- pipes that are larger.
It would also involve the expenditure of new capital funds to install those
new, larger pipes and (potentially) to engage in other expansions of the
system. See, e.g., C. 362 (the Millers' motion for a summary judgment
arguing that the stormwater pipes are "undersized" and that "replacing
the undersized pipes" should be ordered).
The decision to upgrade -- that is, to build new and larger pipes --is different in kind from simply keeping and maintaining the existing
system. In other words, the decision to upgrade a drainage system -- like
the decision to build a drainage system in the first place -- appears to be
an exercise of governmental discretion. This is a question for the political
branches of government, which must balance the competing needs and
the competing desires of their voters with the need for drainage. See, e.g.,
40
SC-2025-0293
Hendrix, 292 Ala. at 545, 297 So. 2d at 368 (stating that a municipality
must make a " ' determination of the necessity and requirements of public
accomplishment' " regarding whether to build a drainage system (citation
omitted)).
Based on the foregoing, we conclude that upgrading a drainage
system, like constructing one, is a decision that has community-wide
impact, thus implicating a duty owed to the public as a whole and not to
individual property owners. As explained above, the decision to upgrade
a drainage system involves prioritizing funding for competing
improvement or development projects that may be needed in the
municipality. It also involves considerations of how such projects may
impact citizens in other parts of the municipality.
Subjecting a municipality to tort liability " ' in those narrow areas
of governmental activities essential to the well-being of the governed' "
would " ' materially thwart the [municipality's] legitimate efforts to
provide such public services' " in the first place. Ex parte City of Orange
Beach, 430 So. 3d 41, 47 (Ala. 2025) (quoting Rich v. City of Mobile, 410
So. 2d 385, 387 (1982)) (emphasis omitted). Our Court has held that a
municipality does not generally owe a duty to an individual plaintiff for
41
SC-2025-0293
any public service that "provide[s] for the public's safety, health, and
general welfare" because such services arise out of a duty to the public as
a whole and not to an individual plaintiff. Ex parte City of Muscle Shoals,
384 So. 3d 37, 44 (Ala. 2023). It seems logical to this Court that the
decision to expand or upgrade a stormwater-drainage system is akin to a
decision to provide a public service "for the public's safety, health, and
general welfare" such that any duty related to the upgrade or expansion
of that system is a duty owed to the public as a whole. See id. at 41-44.12
ii. The Record Supports the Conclusion that the Decision
Whether to Upgrade a Stormwater-Drainage System Is
Not Equivalent to Negligent Maintenance
The record before us indicates that any upgrade the City made to
the system would impact not only the Millers but also other residents.
For instance, the record contains a copy of Schoel Engineering's
2022 report, which indicated that, in order to mitigate, but not fix, the
12We recognize that the two cases on which we rely here -- Ex parte
City of Orange Beach, 430 So. 3d 41 (Ala. 2025), and Ex parte City of
Muscle Shoals, 384 So. 3d 37 (Ala. 2023) -- were decided based on
substantive immunity and our Court's prior decision in Rich v. City of
Mobile, 410 So. 2d 385 (1982). Because we choose to resolve this case
based on traditional tort principles, we need not reach the question of
whether the doctrine of substantive immunity applies to stormwater
drainage.
42
SC-2025-0293
flooding problems occurring around the community, the City would have
to make major changes to its drainage system -- not just near the Millers'
property -- including undertaking a three-phase project costing
$3,944,000 that would require it to dig up and replace all of its pipes and
drain inlets across the City. In his affidavit produced by the City, Walter
Schoel, the senior principal engineer with Schoel Engineering, noted that
"the implementation of the drainage improvement project would likely
cause downstream impacts" and, as a result, that "the project would have
to be extended downstream to mitigate the expected impacts, which
would have significantly increased the overall cost of the project."13
The Millers' complaint likewise expressly relied on those studies
and demanded changes to the drainage system based on those studies.
See C. 95 (alleging that "[the City's] stormwater drainage system is no
longer adequate"); C. 99-100 (noting Schoel Engineering's report and
arguing that report showed that "pipes are undersized" but that the City
had failed to adopt the recommendations for its "drainage system"); C.
102 (alleging that the City's "drainage system… is no longer adequate");
13In fact, one Schoel engineer, David Hains, opined that there were
"not any improvements the City could perform which would solve the
flooding problems at [the Millers' property]."
43
SC-2025-0293
C. 102 (alleging that the City's "drainage system has become
overloaded"); and C. 103-04 (requesting an injunction because the City
had not followed recommended remedial measures by Schoel
Engineering and Hill Engineering).
The Millers' motion for a summary judgment also relied expressly
upon those studies in arguing that Schoel Engineering issued a "report
informing the City that its stormwater drainage infrastructure is 'aging'
and 'struggl[ing] to safely convey stormwater' " and that development
within the City was adding "pressure" and "further tax[ing]" the "already
strained stormwater drainage systems and exacerbat[ing] the drainage
problems." And, the trial court relied upon those expert reports about the
drainage system in rendering its judgment in favor of the Millers below.
See C. 1158 ("Despite… receiving reasonable remediation design plans
from the engineering firm it retained, [the City] has failed to provide
appropriate upkeep of its drainage system.").
In response, the City produced substantial evidence that those
studies were met with extreme resistance from citizens who objected on
the basis that if additional water were added to stormwater
infrastructure located near their downstream properties, as Schoel
44
SC-2025-0293
Engineering's study projected, then "the damage will be extraordinary."
Those citizens further claimed that the project would "harm many more
residents than it will help" and that they "will have no choice but to
utilize all available legal remedies."
Given the community-wide impacts that the expansion or upgrade
of the City's stormwater-drainage system could create, it is evident to
this Court any such action is connected to "the City's responsibility to
provide for the public's safety, health, and general welfare" that goes to
the City's duty to the public at large and not specifically to the Millers.14
Ex parte City of Muscle Shoals, 384 So. 3d at 44. "To hold otherwise
would impermissibly transform the City's duty to the general public,
which is enforced through democratic politics, into a legal duty owed to
individuals, which is enforced by courts." Britt, ____ So. 3d at ____
(Mitchell, J., concurring specially). "It would also excessively burden the
City's 'broa[d] requirement ... to provide for the public health, safety, and
14We need not decide whether the citizens who have objected were
correct about these impacts. The intensity of these objections merely
illustrates the legal point that whether to upgrade the drainage system
is not equivalent to simply maintaining the system. Whether to upgrade
the system is a decision about building; it is a political decision involving weighing competing concerns about which the citizens of the
municipality are entitled to have a say through their elected city council.
45
SC-2025-0293
general welfare of its citizenry,' thereby limiting its practical ability to do
so." Id. (quoting Rich, 410 So. 2d at 387). Indeed, as the City noted in its
reply to the Millers' response to its motion for a summary judgment:
"[The Millers'] theory of liability that a city's failure to
upgrade stormwater infrastructure is tantamount to
'negligent maintenance' would effectively … allow plaintiffs to
repeatedly sue municipalities many decades after stormwater
infrastructure was constructed, and after numerous prior
flooding events, based on a theory that it needed to be
redesigned and reconstructed to present day standards (or
beyond those standards). Cities would be liable under this
theory even if they had maintained their stormwater drainage
infrastructure appropriately and not allowed any obstruction,
clogs, or collapsed pipes to impede the flow of water. And cities
would be under a constant duty to upgrade all older
components of their stormwater infrastructure every time
standards changed."
In other words, were we to broadly construe "negligent maintenance" to
include upgrading, as the Millers suggest, municipalities would
understandably be hesitant to undertake certain public services at all.
This is an outcome that must be avoided.
iii. Prior Drainage Cases from Our Court are Consistent
with Our Conclusion Here
In concluding that there is no duty owed to individual plaintiffs by
a municipality to affirmatively expand or upgrade a drainage system
because such a duty is owed to the public at large, we should not be
46
SC-2025-0293
understood as disturbing any of the precedent that imposes a duty on
municipalities to individual plaintiffs when the municipality negligently
designs, constructs, or maintains its stormwater-drainage system and
that system damages the plaintiffs' property. See, e.g., City of Muscle
Shoals, 384 So. 3d at 44 (discussing Kennedy v. City of Montgomery, 423
So. 2d 187 (Ala. 1982)); Long v. Jefferson Cnty., 623 So. 2d 1130 (Ala.
1993); City of Mobile v. Jackson, 474 So. 2d 644 (Ala. 1985)).
As noted above, in asserting that the City owed them a duty to
upgrade its stormwater-drainage system so as not to further flood their
property, the Millers primarily rely on our Court's prior decision in City
of Mountain Brook v. Beatty, 292 Ala. 398, 295 So. 2d 388 (1974).
In Beatty, the plaintiffs built their home around 1949 or 1950, at
which time an old 24-inch storm sewer existed, which was later replaced
by a 36-inch brick storm sewer by the City. This sewer emptied into a
brook traversing the plaintiffs' property, which was part of the City's
stormwater-drainage system. Over time, the drainage system caused
erosion and flooding on the plaintiffs' property, especially during heavy
rains. Additionally, raw sanitary sewage was noticed in the ditch about
five years before the litigation began.
47
SC-2025-0293
The City began constructing new underground pipes to improve the
drainage system, which included a new 36-inch pipe that would increase
the water flow into the ditch. The plaintiffs sought injunctive relief to
stop the construction and a declaration of rights regarding the use of the
drainage ditch, claiming that the City's actions amounted to a nuisance.
The trial court granted an injunction against the proposed system but
allowed the City to install a different system and granted the City an
easement for such construction. The City appealed, and the plaintiffs
filed a cross-appeal.
On appeal, our Court explained that the key issue was whether the
City had the right to drain water across the plaintiffs' property and, if so,
the extent of that right. In support of that conclusion, our Court
explained:
"The general principles have been succinctly stated as
follows:
" ' An easement of drainage through a ditch to
or across the land of another may be acquired by
prescription, and the principles and requisites of
the acquisition of an easement by prescription in a
private way apply. In order to acquire the right,
the use must have extended the required time, and
must have been adverse, peaceable,
uninterrupted, and under a claim of right. … The
48
SC-2025-0293
ditch or drain must have been an apparent, open,
visible, or notorious encumbrance; and there must
have been an actual occupation by the flow of
water.'
"93 C.J.S. Waters § 121, at 821-22. See also Acadia-Vermilion
Rice Irrigating Co. v. Broussard, 175 So. 2d 856 (Ct. App. La.
1965); Riggs v. Ketner, 299 Ky. 754, 187 S.W.2d 287 (1945);
Hargraves v. Wilson, 382 P.2d 736 (Okl. 1963).
"In Alabama the prescriptive period is 20 years. Fitts v.
Alexander, 277 Ala. 372, 170 So. 2d 808 (1965). In Stearnes v.
Woodall, 218 Ala. 128, 117 So. 643 (1928), this court outlined
the following requisites for establishing title by prescription:
" ' [T]he elements on which the doctrine of
prescription is applied differ from those of adverse
possession. In the first there must be an
individual, continuous possession of user without
the recognition of adverse rights, for a period of 20
years, and upon establishment of such claim and
user, the law presumes the existence of all the
necessary elements of adverse possession or title
without fuller proof. …' "
292 Ala. at 403, 295 So. 2d at 391-92.
Our Court explained that for more than 20 years there had been a
city drainage pipe emptying into the ditch on the plaintiffs' adjacent
property. Based on that evidence, our Court held that it was clear that
the City had acquired a prescriptive drainage easement across the
plaintiffs' property.
49
SC-2025-0293
Although our Court found that the City had an easement for
drainage, our Court also stressed that we were not implying that the City
possessed the right to flood the plaintiffs' property. We made clear that
"[t]he prescriptive right to drain carries with it the corresponding duty to
maintain the ditch in such a condition that the water cast in the ditch by
the city [does] not cause it to overflow." 292 Ala. at 406, 295 So. 2d at 394
(emphasis added). Thus, our Court upheld the injunction against the
City. Id.
At first blush, it may seem as though Beatty is indistinguishable
from the present case. However, unlike in Beatty, the Millers' allegations
against the City concern its failure to maintain its broader stormwaterdrainage system, not just the portion of the system within the easement
that runs over their property.
Additionally, in Beatty, our Court's holding was clearly based on
the principle that a municipality has a "duty to maintain" its drainage
easement in such a way that it does not overflow onto an adjoining
landowner's property. In fact, Beatty not only uses the term "duty to
maintain" at least three times, it also cites and quotes a Georgia case
relating to the "duty to maintain" in support of its conclusion. See 292
50
SC-2025-0293
Ala. at 405, 295 So. 2d at 394 (citing and quoting City of Atlanta v.
Williams, 218 Ga. 379, 128 S.E.2d 41 (1962)).
Also, unlike Beatty, here, the City provided substantial evidence
that it did not negligently maintain its system. For instance, the City
offered evidence that it was undisputed that the City's drainpipes and
drain inlets -- which have been in place since 1928 -- have never been
found to have any maintenance issues. In the aftermath of the flooding
event, the City noted that an evaluation of its drainpipes and drain inlets
(including a video analysis) did not reveal any cracks or structural issues
with its system or blockages. The Millers did not offer any evidence to the
contrary.
Because there is nothing in the record that indicates that the City
negligently maintained its stormwater-drainage system, there is no
genuine issue of material fact in this case as to whether it owed an
individual duty to the Millers to upgrade that system. This conclusion is
consistent with prior drainage cases from our Court, including Beatty.
See, e.g., City of Mobile v. Jackson, and Kennedy v. City of Montgomery,
supra (both recognizing that it is only when a municipality has
negligently constructed or maintained its drainage system that a duty
51
SC-2025-0293
may be owed to an individual plaintiff).
Conclusion
In making decisions about stormwater-drainage systems, their
location, capacity, and effectiveness, several competing and compelling
strategies must be considered by a municipality. Balancing these
interests requires an elected body to apply discretion. Whether to
upgrade the stormwater-drainage system is subject to these same
constraints.
In this case, we are essentially being asked to review decisions
made by a municipality and to fashion a remedy that would benefit one
property owner but would impact other property owners who are not
parties to the litigation and could be disproportionately impacted by the
remedy that is being sought. This is something we cannot do. Absent any
evidence of wrongdoing on the part of the municipality, the best we can
do is to construe its actions -- or, in this case, lack of action -- as the best
expression of what is right for all property owners within the community.
Because the City presented substantial evidence that no genuine
issue of material fact existed as to whether it owed the Millers an
individual duty to upgrade its stormwater-drainage system, it was
52
SC-2025-0293
entitled to a summary judgment in its favor on their tort claims. As a
result, the permanent injunction against it also cannot be upheld. See
generally City of Birmingham v. City of Fairfield, 375 So. 2d 438, 442
(Ala. 1979) (plurality opinion) (recognizing that "the drastic remedy of
abatement by injunction is not available to an injured party unless the
authorized instrumentality was negligently constructed or maintained").
Accordingly, we reverse the trial court's summary judgment and
permanent injunction in favor of the Millers and remand the case for that
court to enter a summary judgment in the City's favor on that basis.15
REVERSED AND REMANDED.
Stewart, C.J., and Wise, Cook, McCool, JJ., concur.
Sellers and Parker, JJ., concur specially, with opinions.
Shaw, Bryan, and Mendheim, JJ., concur in the result.
15Because we find this issue to be dispositive in this case, we
pretermit discussion of any other issues raised by the parties on appeal.
See Jackson Hosp. & Clinic, Inc. v. Murphy, 343 So. 3d 490, 498 n.3 (Ala.
2021) (pretermitting discussion of remaining issues on appeal after
determining a dispositive issue).
53
SC-2025-0293
SELLERS, Justice (concurring specially).
I concur with the main opinion. I write specially, however, to point
out the deference a court should give to a locality's decision in fashioning
a remedy affecting multiple property owners.
Water is a curious liquid; while essential for life, it can cause death
and destruction when concentrated and seeks its level. For this reason,
under the common law, water was treated as a common enemy. This was
so because, when water caused great damage to property, landowners
were allowed to defend their property from flooding occasioned by
extraordinary rain. But property is rarely level, and, as water flows
downhill, one property owner fending off water can cause damage to an
adjacent property owner. Thus, from a practical standpoint, lower land is
and always will be subservient to higher land when surface water flows
from the higher to the lower. That is a law of gravity that even a court
cannot suspend by order, injunction, or decree. But, for property to
become useful based on location, for its highest and best use, the effects
of water can be mitigated by mutual agreement between landowners,
whether adjacent, adjoining, upstream, or downstream. Organized
property owners in a political subdivision combine their resources to
54
SC-2025-0293
develop strategies to allow water to drain in a manner that causes the
least amount of damage to all the property owners. Decisions about the
logistics of drainage are political in nature, as defeating a common enemy
benefits all citizens. But, in making decisions about storm sewers, their
location, capacity, and effectiveness, several competing and compelling
strategies must be considered by coalitions contained in a political
subdivision of the affected property owners. And balancing these
interests requires finding the best solution from any number of good
solutions. Such is the nature of government. Like all decisions, some
property owners may be impacted disproportionately, but if the overall
decision benefits the majority, that action is generally acceptable. In
cases like this one, we are essentially being asked to sit in equity and
review decisions made by a political subdivision and the impact of that
decision on a single property owner. But as a court, we simply cannot
fashion a remedy to benefit one property owner that would impact other
property owners who are not party to the litigation, but could be impacted
even more disproportionately. The best we can do is to defer to the
political subdivision and construe its actions (or in this case lack of
action) as the best expression of what is right for all property owners
55
SC-2025-0293
within the political subdivision. Defeating a common enemy requires
consideration of any number of strategic alternatives, and this
consideration is more critically decided by officials elected from the
property owners directly impacted by their decision, not the judiciary.
Enjoining a political subdivision to act against a common enemy over
which there is no control is always an abuse of discretion. Concomitantly,
taking action to benefit only one property owner to the exclusion of others
within a community is substituting a court's judgment over and against
elected officials, whom we presume to act in the best interests of their
community. This we should not do. Thus, when elected officials within a
political subdivision render a decision, we should be careful to disturb
their decision only when the legality of their actions is apparent.
Otherwise, courts would be asked to superintend the decision-making
processes of localities, which we are completely unqualified to do. By
reversing the summary judgment, we are properly allowing leaders
within a political subdivision to take into consideration all the various
ways to remedy a problem and to fashion a solution without concern that
any potential negative impact occasioned by such a decision could impose
cost-prohibitive, court-ordered liability.
56
SC-2025-0293
PARKER, Justice (concurring specially).
I concur with the main opinion's result and core reasoning. I write
separately to highlight a key doctrinal point: Our decision not only is
consistent with "traditional tort principles," ___ So. 3d at ___ n. 12, but
also fits comfortably with an on-point statute enacted by our Legislature.
In § 11-47-190, Ala. Code 1975, the Legislature has established a
default rule of blanket tort immunity for Alabama municipalities. It says
that "[n]o city or town shall be liable for damages or injury done to or
wrong suffered by any person or corporation." Id. But there are two
exceptions to this default rule. One exception -- for failure to remedy
known defects in municipal "streets, alleys, public ways, or buildings,"
id.-- is not particularly relevant here. But the other exception is: Under
it, a municipality may be liable if the plaintiff suffered an "injury or
wrong" through the "neglect, carelessness, or unskillfulness" of its agents
"engaged in work therefor … while acting in the line of his or her duty."
Id.
Applying the second exception to the facts of this case seems
straightforward to me. The Millers have not contended that any agent of
the City of Mountain Brook was "careless" or "unskillful" in his or her
57
SC-2025-0293
work; at most, their claims turn on the notion of "neglect." But as the
main opinion persuasively explains, our precedents point to a meaningful
distinction in this context between neglect and a legitimate policy choice,
between failing to "keep[] and maintain[] the existing system" and the
"decision to upgrade -- that is, to build new and larger pipes." ___ So. 3d
at ___. Under that distinction, Mountain Brook's decision not to upgrade
its drainage system fails to trigger the immunity exception, and so the
default rule of immunity applies to bar the Millers' claims.
As the main opinion suggests, there are good reasons for the result
we reach today: To hold otherwise would risk undermining the local
democratic process. See ___ So. 3d at ___ (citing Britt v. City of Hoover,
[Ms. SC-2024-0530, May 16, 2025] ____ So. 3d ____, ____ (Ala. 2025)
(Mitchell, J., concurring specially)). I add only that our decision can be
(and, in my view, is) grounded in a decision produced by the state's own
democratic process -- namely, the immunity conferred on Mountain
Brook by the Legislature through the municipal-immunity statute.
58