JOHN LOWE v. ANN ETHERIDGE, AS NATURAL PARENT OF NEXT OF KIN CLINTON GIDDENS ( 2021 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
August 23, 2021
In the Court of Appeals of Georgia
A21A0761. LOWE et al. v. ETHERIDGE, AS NATURAL PARENT
OF NEXT OF KIN CLINTON GIDDENS et al.
GOBEIL, Judge.
Ann Etheridge, as natural parent and next of kin of Clinton Giddens, brought
the underlying wrongful death action against Jones County employees John Lowe and
Donald Hammock (collectively referred to as the “defendants”), alleging that the
defendants’ negligence in failing to maintain the roadway where Giddens was killed
was the proximate cause of his death. The defendants appeal from the trial court’s
order denying their motion for summary judgment, asserting that they were entitled
to official immunity. For the reasons that follow, we reverse.
Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law[.]” OCGA § 9-11-56 (c).
When a defendant moves for summary judgment as to an element of the
case for which the plaintiff, and not the defendant, will bear the burden
of proof at trial[,] the defendant may show that he is entitled to summary
judgment either by affirmatively disproving that element of the case or
by pointing to an absence of evidence in the record by which the
plaintiff might carry the burden to prove that element. And if the
defendant does so, the plaintiff cannot rest on [her] pleadings, but rather
must point to specific evidence giving rise to a triable issue.
Beale v. O’Shea, 319 Ga. App. 1, 2 (735 SE2d 29) (2012) (citation and punctuation
omitted). We review the grant of a motion for summary judgment de novo, “view[ing]
the evidence, and all reasonable inferences drawn therefrom, in the light most
favorable to the nonmovant.” Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d
779) (2010) (citation and punctuation omitted). The issue of official immunity “is a
question of law and is reviewed de novo.” See Roberts v. Mulkey, 343 Ga. App. 685,
687 (1) (808 SE2d 32) (2017) (citation and punctuation omitted).
Thus viewed in the light most favorable to Etheridge as the nonmovant, the
record shows that on the afternoon of November 28, 2016, Giddens was operating his
motorcycle on a road in Jones County when a pine tree located in the right-of-way fell
2
and struck him. Giddens died as a result of the accident. Etheridge then filed a
wrongful death action against Lowe, Hammock, and others.
At the time of the accident, Lowe was the director of the Jones County Public
Works Department (the “Department”). Hammock was the superintendent of the
Department. The Department is tasked with upkeep, maintenance, and inspection of
approximately 500 miles of county roadway. The Department has an unwritten policy
that employees traveling the county roadways scan the right-of-way and inspect for
the presence of visible hazards and report such hazards. However, this policy does not
specify how employees are to inspect or assess the trees within and along the county’s
rights-of-way. According to Hammock, a visible dead tree hanging over the roadway
was considered a hazard that any employee was required to report.
Lowe testified via deposition that if there was a tree in the right-of-way that
needed removal, he or Hammock would “assess the tree to see whether or not it’s
something” that his crews could handle. Lowe testified that his crews will not take
action with respect to a dead tree “if it’s not causing a hazard,” because “dead trees
are everywhere” and “all dead trees don’t fall just [because] they’re dead.” Hammock
testified that if a tree was identified as needing to “come down,” he would take action
to address the tree by either having it immediately taken down or placing it on a
3
waiting list to come down based upon his perception of the seriousness of the issue.
Prior to the accident, neither Lowe nor Hammock were aware of the subject tree, nor
had they received complaints or notifications from anyone regarding the subject tree.
Etheridge’s witness, Laura Wilson, witnessed not only the accident that killed
Giddens, but she also observed the subject tree prior to the accident. Specifically,
Wilson testified that ten days before the accident, she observed the tree leaning over
the roadway, approximately “three feet out from that yellow line.” Wilson also
testified that she observed two men in a Department truck slow and point at the tree
that fell and hit Giddens. According to Wilson, one man pointed at the tree and the
other made a nodding gesture.
The defendants filed a motion in limine to exclude parts of Wilson’s testimony.
The trial court granted the motion in part and denied it in part, allowing Wilson to
testify only as to her observations, including that two Department employees were in
a truck in the vicinity of the dead tree, and any conclusions drawn after explaining her
factual basis for such opinions. The court expressly prohibited any testimony that the
employees were pointing at the specific tree that ultimately fell and caused Giddens’s
death or speculation about what the two persons in the vehicle may have been saying
to one another.
4
The defendants also filed a motion for summary judgment asserting official
immunity, which the trial court denied. The court found that there was a question of
fact as to whether the Department had “sufficient unwritten policies” creating a
ministerial duty for the defendants to act upon, and whether they “actually saw the
leaning tree.” The trial court certified its decisions for immediate review, and, after
we granted the defendants’ application for interlocutory review, this appeal followed.
1. The defendants argue that the trial court erred by denying their motion for
summary judgment because they were entitled to official immunity, as the conduct
complained of implicates discretionary, rather than ministerial, functions.
Specifically, they contend the trial court erred by finding a fact question on the issue
of whether the Department had unwritten policies in place to create a “reporting” duty
requiring defendants to act, and failing to identify “simple, absolute, and definite
dut[ies]” that the defendants did not perform.
“The doctrine of official immunity, also known as qualified immunity, offers
public officers and employees limited protection from suit in their personal capacity.”
Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010) (citation and
punctuation omitted); see also Ga. Const. of 1983, Art. I, Sec. 2, Para. IX, subsection
(d). Public employees, such as the defendants, may be personally liable for their
5
negligent ministerial acts, but they may not be held liable for discretionary acts unless
such acts are wilful, wanton, or outside the scope their authority.1 Gilbert v.
Richardson, 264 Ga. 744, 752-753 (6) (452 SE2d 476) (1994).
A ministerial act is commonly one that is simple, absolute, and definite,
arising under conditions admitted or proved to exist, and requiring
merely the execution of a specific duty. A discretionary act, however,
calls for the exercise of personal deliberation and judgment, which in
turn entails examining the facts, reaching reasoned conclusions, and
acting on them in a way not specifically directed.
McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009) (citation and
punctuation omitted).
“Whether the acts upon which liability is predicated are ministerial or
discretionary is determined by the facts of the particular case, and it depends on the
character of the specific actions complained of, not the general nature of the job.”
Barnard v. Turner County, 306 Ga. App. 235, 238 (1) (701 SE2d 859) (2010)
(citation and punctuation omitted). “Where there is an established policy requiring an
official to take specified action in a specified situation, the policy creates a ministerial
duty on the part of the official to perform the specified task.” Id. (citation and
1
Etheridge did not allege that the defendants acted willfully or with malice.
6
punctuation omitted). “A ministerial duty may be established by evidence such as a
written policy, an unwritten policy, a supervisor’s specific directive, or a statute.”
Roper v. Greenway, 294 Ga. 112, 114-115 (751 SE2d 351) (2013) (citations omitted).
Here, Etheridge alleged in the complaint that the defendants had a duty to
inspect and ensure that the roadway was free from hazardous conditions. In response
to the defendants’ motion for summary judgment, Etheridge maintained that the
evidence showed that Department policy required employees to report hazards to a
supervisor so that action could be taken to remove the hazard. Etheridge characterized
this reporting duty as “mandatory,” and thus lacking choice or discretion. However,
the operative duty involved in this case was the duty to inspect and identify a hazard,
and the duty to report and remove arises only upon a hazard being identified. The
Department did not have a policy on how trees were to be assessed to determine if
they were a hazard, nor what specific actions an employee should take once a tree was
deemed hazardous. Thus, the acts of inspection and assessment are discretionary as
they require the employees to exercise personal deliberation and judgment. Indeed,
this Court has held that “[i]nspecting [public] property for hazards, deciding what
constitutes a hazard, selecting appropriate methods for correction, and creating
priorities and a schedule for correction, all necessarily involve the exercise of
7
discretion.” Hemak v. Houston County School Dist., 220 Ga. App. 110, 113 (469
SE2d 679) (1996). The fact that the Department instructed employees to scan the
right-of-way for hazards does not, under the facts present in this case, convert that job
function into a ministerial act because identifying a hazard requires deliberation and
judgment. See Ortega v. Coffey, 348 Ga. App. 794, 798 (2) (a) (824 SE2d 690) (2019)
(county road supervisor’s duty to inspect roadway upon notice of unsafe or dangerous
condition was discretionary where there was no policy or directive establishing
manner in which supervisor was required to inspect, repair, or maintain roadway;
there were no required, scheduled inspections; and county had no written policy,
instructions, or directions about how roadways should be maintained or how to
respond to issues with roadways); Kordares v. Gwinnett County, 220 Ga. App. 848,
848-849 (470 SE2d 479) (1996) (because county employees generally inspected
bridges once or twice a year, but no policy or procedure dictating the method of
inspection, the inspection was a discretionary function); Coffey v. Brooks County, 231
Ga. App. 886, 889 (2) (b) (500 SE2d 341) (1998) (where there was no established
procedure or instruction which the individual road supervisors and employees failed
to follow during their inspections of the roadways, therefore, the acts relating to the
manner of inspection and the action to be taken regarding the results obtained during
8
the inspection, upon which any liability is premised, were discretionary), reversed in
part on other grounds, Rowe v. Coffey, 270 Ga. 715, 716 (515 SE2d 375) (1999).
Consequently, the trial court erred by finding a genuine issue of material fact as to the
existence of a ministerial duty on the part of the defendants in this case, and we
reverse the court’s denial of the defendants’ motion for summary judgment based on
official immunity.
2. Based on our holding in Division 1, we need not address the defendants’
remaining claims of error.
Judgment reversed. Barnes, P. J., and Markle, J., concur.
9