Street-Defect Municipal Liability Requires Admissible, Defect-Specific Proof of Prior Notice Under § 11-47-190

Case: Ex parte City of Birmingham (In re: Demarco Stoudmire v. City of Birmingham), SC-2025-0591 (Ala. July 2, 2026)

1. Introduction

This mandamus proceeding arose from a motorcycle crash allegedly caused by a roadway “defect” on Avenue V in Ensley, within the City of Birmingham. Demarco Stoudmire asserted that the City negligently failed to repair or remedy the roadway defect and sought damages after submitting a notice of claim within six months.

The City defended primarily on municipal immunity under § 11-47-190, Ala. Code 1975, arguing Stoudmire lacked substantial evidence that the City had actual or constructive notice of the specific defect before the accident. After the trial court denied a renewed summary-judgment motion (and struck key plaintiff evidence), the City petitioned for mandamus.

The key issue the Supreme Court of Alabama resolved was evidentiary and defect-specific: whether the remaining admissible materials created a genuine issue of material fact that the City knew, or should have known, of the particular defect in time to remedy it—such that § 11-47-190’s notice-based exception to municipal immunity could apply.

2. Summary of the Opinion

The Court granted mandamus and directed entry of summary judgment for the City on municipal immunity grounds. It held that:

  • The City made a prima facie showing of no prior notice using sworn testimony that 311 records reflected no prior complaints about the relevant location and that public-works leadership was unaware of any documentation evidencing notice.
  • Stoudmire failed to rebut that showing with substantial admissible evidence. His remaining evidence did not adequately connect any earlier incident to the same defect that caused his crash, and the inferences he urged (age of roadway, general deterioration, unspecified prior incidents) were speculative.
  • Materials created contemporaneously with the crash (first responder and police-related records) cannot establish the required pre-accident notice under § 11-47-190.
  • An unnotarized, unauthenticated “statement” could not be considered at summary judgment under Rule 56(e), Ala. R. Civ. P.

The Court expressly declined to decide the City’s separate notice-of-claim statutory arguments (under §§ 11-47-23 and 11-47-192), limiting mandamus review to the immunity issue.

3. Analysis

A. Precedents Cited

1) Mandamus and immunity posture

  • Ex parte U.S. Bank Nat'l Ass'n, 148 So. 3d 1060 (Ala. 2014)
    Provided the four-part mandamus standard (“clear legal right,” duty/refusal, no adequate remedy, jurisdiction). The Court applied this to the immunity-based request for extraordinary relief.
  • Ex parte Wood, 852 So. 2d 705 (Ala. 2002)
    Supported the exception permitting mandamus review of an order denying summary judgment when the motion is “grounded on a claim of immunity.”
  • Ex parte City of Muscle Shoals, 257 So. 3d 850 (Ala. 2018)
    Played two roles: (i) confirmed mandamus availability for municipal immunity disputes, and (ii) supplied the model for a municipality’s prima facie showing (evidence of no complaints/notice) and for rejecting speculative constructive-notice theories (e.g., deterioration over a period without proof of defect-specific hazard).
  • Ex Parte Kelley, 296 So. 3d 822 (Ala. 2019)
    Limited the scope of mandamus review to “immunity issues,” which the Court used to justify not addressing the notice-of-claim statutes in this proceeding.

2) Summary-judgment framework and evidentiary burdens

  • Nettles v. Pettway, 306 So. 3d 873 (Ala. 2020)
    Cited for de novo review of summary-judgment rulings.
  • Blue Cross & Blue Shield of Alabama v. Hodurski, 899, So. 2d 949 (Ala. 2004)
    Restated the prima facie burden on the movant and entitlement to judgment as a matter of law.
  • Powers v. Chadwell Homes, LLC, 413 So. 3d 707 (Ala. 2024)
    Supplied the burden-shifting rule: once the movant meets its prima facie burden, the nonmovant must present “substantial evidence” of a genuine issue of material fact.
  • Jefferson Cnty. Comm'n v. ECO Preservation Servs., L.L.C., 788 So. 2d 121 (Ala. 2000)
    Reinforced that evidence is viewed in the light most favorable to the nonmovant.

3) § 11-47-190 notice—actual vs. constructive and defect-specificity

  • Slade v. City of Montgomery, 577 So. 2d 887 (Ala. 1991)
    Guided the constructive-notice concept: the presumption of knowledge arises when the municipality could have obtained knowledge “by the use of ordinary diligence.” The Court used this to frame constructive notice as an evidence-driven, defect-specific inquiry—rather than generalized assumptions about aging roads.

4) Speculation cannot defeat summary judgment

  • Ex parte Ala. Peace Officers' Standards & Training Comm'n, 34 So. 3d 1248 (Ala. 2009)
    Used to reject arguments resting on speculation rather than evidence of a fact issue.
  • Brown ex rel. Brown v. St. Vincent's Hosp., 899 So. 2d 227 (Ala. 2004) (plurality opinion) and Crowne Invs., Inc. v. Bryant, 638 So. 2d 873 (Ala. 1994)
    Provided the quoted line that speculation about fact issues cannot defeat a properly supported summary-judgment motion.

5) Rule 56(e) authentication and admissibility at summary judgment

  • Barrett v. Radjabi-Mougadam, 39 So. 3d 95 (Ala. 2009)
    Established that written documents not certified/authenticated as required by Rule 56(e), Ala. R. Civ. P., may not be considered on summary judgment.
  • Couch v. City of Sheffield, 708 So. 2d 144 (Ala. 1998) (plurality opinion)
    Supplied the rule that affidavits must be confirmed by oath or affirmation before an authorized officer—supporting the striking of the neighbor’s unnotarized “statement.”

6) Pretermitting non-dispositive issues

  • Jackson Hosp. & Clinic, Inc. v. Murphy, 343 So. 3d 490 (Ala. 2021)
    Cited for the practice of pretermitting remaining issues once a dispositive issue is resolved (here, municipal immunity).

7) Dissent’s timeliness/discretion theme

  • Ex parte Integon Corp., 672 So. 2d 497 (Ala. 1995)
    Quoted for the mandamus standard, used by the dissent to argue the City lacked a “clear legal right” given procedural circumstances.
  • Ex parte Jones, 147 So. 3d 415 (Ala. 2013)
    Used by the dissent to argue that renewed-summary-judgment practice should not create a “back-door” for untimely mandamus review of immunity issues the petitioner could have pursued earlier.

B. Legal Reasoning

1) The controlling statutory frame: § 11-47-190

The Court treated municipal liability for street defects as an exception to the statute’s baseline immunity. Under the second exception, the plaintiff must show either:

  • Actual notice: the defect was “called to the attention of the council or other governing body” before the injury; or
  • Constructive notice: the defect existed for “such an unreasonable length of time as to raise a presumption of knowledge.”

Critically, the Court construed the inquiry as defect-specific: the statute asks whether “such defect” (the defect that caused the injury) was known or existed long enough to impute knowledge.

2) The City’s prima facie showing

The City’s evidence—(i) sworn testimony from the 311 call-center director that a diligent search found no pre-accident records for the relevant block, and (ii) the public-works director’s testimony that he was unaware of documentation reflecting notice—sufficed to shift the burden.

3) Why Stoudmire’s proof failed (actual notice)

The Court rejected contemporaneous records (first responder/police materials) as proof of “actual notice” because they were created at the time of the crash; § 11-47-190 requires notice before the injury.

As to the former employee’s affidavit (Fitzpatrick), the Court held the problem was not merely “time gap,” but the absence of evidence connecting the earlier “hole” to the same defect. Because the affidavit placed Fitzpatrick’s incident anywhere within a 2003–2019 range and provided no anchoring details to demonstrate identity with the 2021 defect, the inference that they were the same would be speculation.

4) Why Stoudmire’s proof failed (constructive notice)

  • Struck statement cannot be used: The neighbor’s “statement” was not notarized/authenticated, so it was inadmissible under Rule 56(e) principles as explained in Barrett v. Radjabi-Mougadam and Couch v. City of Sheffield.
  • No evidence of other accidents/reports at that location: With the statement struck, the record lacked competent proof of a pattern of prior accidents at the precise site.
  • Age-of-road argument is inadequate: The Court deemed the “20-year-old streets must have defects” theory speculative and inconsistent with § 11-47-190’s “such defect” requirement. Constructive notice cannot be inferred from generalized deterioration; it must be tied to the particular hazard and its duration.
  • Fitzpatrick affidavit again fails defect-identity: Without proof the earlier and later defects were the same, the affidavit could not establish how long the defect at issue existed—so it could not support the presumption of knowledge.

5) The dissent’s procedural warning (and what the majority did not decide)

Justice Mendheim’s dissent focused less on the merits of notice and more on mandamus propriety, criticizing the City’s renewed-motion strategy and arguing the petition resembled a late attempt to obtain extraordinary review of issues that could have been pursued earlier. The majority did not adopt that timeliness-based limitation and proceeded to decide the immunity merits, while expressly declining to reach the notice-of-claim statutory issues.

C. Impact

  • Defect-identity becomes decisive in many street-defect suits: Plaintiffs must marshal admissible evidence that prior complaints/incidents involve the same defect (or that the defect persisted continuously) rather than merely the same road segment.
  • Municipal “no record/no awareness” showings may be enough to shift the burden: Sworn testimony about 311 searches and departmental lack of documentation can establish a prima facie entitlement to immunity unless rebutted with competent evidence.
  • Summary-judgment evidence hygiene is outcome-determinative: Unnotarized statements and unauthenticated documents risk being struck, potentially collapsing the plaintiff’s case on notice.
  • Limits on constructive-notice theories: General claims that old infrastructure likely deteriorates will not substitute for proof that the particular hazard existed for an “unreasonable” time.

4. Complex Concepts Simplified

  • Municipal immunity (§ 11-47-190): In Alabama, cities generally are not liable for injuries, with narrow statutory exceptions. For street defects, liability depends on proof the city had notice of the defect and failed to remedy it.
  • Actual notice vs. constructive notice:
    • Actual notice means the city was told about the defect before the injury.
    • Constructive notice means the defect existed so long that the law treats the city as if it should have known, even if nobody can prove someone actually told it.
  • “Such defect” (defect-specific inquiry): The statute is not about whether the road “generally” was in bad shape; it is about whether the specific hazard that caused the accident was known or long-standing.
  • Mandamus: An extraordinary appellate remedy used to correct certain trial-court errors immediately. Alabama allows it to review denials of summary judgment when immunity is at stake.
  • Rule 56(e) authentication: At summary judgment, documents must be presented in a form that would be admissible (or reducible to admissible form) and properly authenticated; unsigned/unnoratarized statements are commonly excluded.
  • “Substantial evidence” and “speculation”: Once the moving party shows no genuine issue, the opponent must produce real evidence—not guesses or possibilities—to support each necessary element.

5. Conclusion

Ex parte City of Birmingham tightens the practical requirements for overcoming municipal immunity in street-defect cases: plaintiffs must present admissible, defect-specific evidence showing the municipality had pre-injury actual notice or that the same defect persisted long enough to impute knowledge. Unauthenticated statements and generalized deterioration theories will not carry the burden once a city makes a record-based prima facie showing of no notice.