Pamela Stanley v. Dekalb County ( 2021 )

THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, 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.
September 24, 2021
In the Court of Appeals of Georgia
A21A0820, A21A0821. DEKALB COUNTY v. STANLEY; and
vice versa.
BROWN, Judge.
Pamela Stanley suffers from neuromyelitis optica, an autoimmune disease that
attacks the optic nerve and has rendered her visually impaired. Stanley is considered
fully disabled by the Social Security Administration. While walking on a sidewalk in
DeKalb County, Stanley tripped and fell in a hole, fracturing her foot. Stanley sued
multiple defendants, including DeKalb County and David Pelton, “In his Official
Capacity as Director of DeKalb County Public Works Transportation Division,”
asserting claims for negligence, nuisance, and violation of Title II of the Americans
with Disabilities Act of 1990 (the “ADA”), 42 USC § 12101 et seq.1 The trial court
dismissed Stanley’s claims for negligence and nuisance on the ground of sovereign
immunity, but denied the County’s motion for summary judgment on the ADA claim.
In Case No. A21A0820, the County appeals the denial of its motion for summary
judgment on the ADA claim. In Case No. A21A0821, Stanley appeals the trial court’s
dismissal of her negligence and nuisance claims. We reverse in Case No. A21A0820,
but affirm in Case No. A21A0821.
Case No. A21A0820
Background Facts/Procedural History. This Court reviews de novo a grant or
denial of summary judgment, viewing the evidence and all reasonable conclusions
and inferences drawn from it in the light most favorable to the nonmovant. City of St.
Marys v. Reed, 346 Ga. App. 508, 508-509 (816 SE2d 471) (2018). Summary
judgment is proper when there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Id. at 508. See also OCGA § 9-11-56 (c).
“[T]he burden on the moving party may be discharged by pointing out by reference
1
On March 6, 2019, Stanley and Pelton, in his official capacity, filed a consent
motion to dismiss Pelton from Stanley’s action without prejudice. The trial court
granted the motion on March 27, 2019, dismissing Pelton without prejudice and
noting that he “shall no longer be listed as [a] party defendant[ ] in this action.”
2
to the affidavits, depositions and other documents in the record that there is an
absence of evidence to support the nonmoving party’s case.” (Citation and
punctuation omitted.) Ellison v. Burger King Corp., 294 Ga. App. 814, 819 (3) (a)
(670 SE2d 469) (2008). See also OCGA § 9-11-56 (c).
So viewed, the evidence shows that on May 15, 2016, Stanley and her adult son
were walking on the sidewalk on Snapfinger Woods Drive in DeKalb County,
heading to the Little Giant Supermarket, when Stanley tripped and fell in a hole/cut-
out in the sidewalk, fracturing her foot.2 Because of her impaired vision, Stanley
could not see the cut-out in time to avoid it; Stanley testified during her deposition
that she cannot see things until she “get[s] close up” and that while she frequently
walked that area and had shopped at Little Giant many times, she had never traversed
the portion of the sidewalk where she fell.
Approximately two weeks before Stanley’s fall, Dwight Carter, a DeKalb
County resident who had narrowly avoided falling into the cut-out in his wheelchair,
called the County on May 2, 2016, to complain that the cut-out posed a danger “for
anyone, but especially anyone who is disabled.” Carter was assured by the County
2
The cut-out measured approximately one foot wide, four feet long, and a few
inches deep.
3
that the cut-out would be fixed. He called six to eight more times to follow-up, and
was again told the cut-out would be fixed, but it “still wasn’t fixed even three weeks
later.” A second individual, who saw Stanley’s fall, averred that about two weeks
before Stanley’s fall, she complained about the cut-out to a crew that was mowing
grass in the area. The cut-out was not repaired until January 19, 2017, when Peggy
Allen, the Deputy Director of Public Works for the County’s Road and Drainage
Department was made aware of it, apparently as a result of an Open Records Act
request made by Stanley in connection with this case.3 According to Allen, there is
3
The County does not know who made the cut-out, but according to pictometry
viewed by Pelton, the cut-out was made sometime between January 2013 and January
2014. The owner of Harkleroad & Assoc., Inc., a civil engineering and land surveying
firm, averred that in September 2013, his firm was hired to assist RaceTrac Petroleum
in engineering the corner property at Wesley Chapel Road and New Snapfinger
Woods Drive. As part of the project, a utility locating firm contracted by RaceTrac
performed utility location work at the site including “potholing,” a method used to
locate utilities underground which includes cutting out parts of the existing sidewalk
to visualize the utilities located underneath. On or about September 3, 2013, the
utility locating firm potholed a small section of the existing sidewalk, creating the
cut-out into which Stanley eventually fell. When the work was finished, the utility
locating firm filled in the cut-out with asphalt. It appears, however, that in February
2014, Comcast Cable may have removed the asphalt in order to perform a “cable pull
through.”
The record reflects that the County could locate only one permit that was issued
for this location; that permit was requested in January 2014, and issued to Comcast
on February 3, 2014, for boring work which involves digging in the ground on either
side of the road and then pushing a cable through from one side to the other. The
sketch accompanying the permit did not indicate that Comcast planned to remove any
4
no required time for the County to respond to reports or requests for repair; the time
depends on the number of inspectors available and the number of requests in the
queue. Allen testified that “it could be 90 days” and that requests must be triaged
based on severity.
Stanley sued a number of defendants seeking only compensatory damages. As
relevant to the appeal in Case No. A21A0820, Stanley alleged that the County’s
negligence in leaving the hazardous cut-out in its public sidewalk violated Title II of
the ADA and her rights under the Fourteenth Amendment to the U. S. Constitution,
resulting in Stanley’s discrimination as compared to other citizens who use the public
sidewalk and do not have a disability. The complaint specifically alleged the
following:
Defendant DeKalb County’s negligence in leaving such a hazard in its
public sidewalk violated Title II of the ADA. . . . In spite of having
actual notice of the hazard, Defendant DeKalb County did not repair the
cut-out to make it safe for the public to use the sidewalk until 8 months
portion of the sidewalk. David Pelton, the Deputy Director of the Public Works for
the County’s Transportation Division testified that “[p]eople dig without permits” and
that if there is utility digging, the County never sees the actual utility locate
notification; the County “presumes if [it has] given [a company] a permit, [the
company will] follow state law.” The County expects that if a company makes a cut-
out in a County sidewalk, they will repair it.
5
after it received actual knowledge of its existence. This unreasonable
length of time to repair a known hazard amounts to deliberate
indifference by Defendant DeKalb County. . . . DeKalb County
maintains a policy of intentional ignorance regarding defects and
hazards in their sidewalk, i.e., DeKalb County maintains a policy that it
does not inspect their sidewalks actively and relies on a citizen to call in
a complaint about a sidewalk before they will repair it. . . . This policy
of intentional ignorance amounts to deliberate indifference to the rights
of its citizens. . . . This policy of intentional ignorance is particularly
hazardous to disabled people like [Stanley] who rely on the county to
provide safe, non-hazardous sidewalks for its citizens to use.
The County moved for summary judgment on Stanley’s ADA claim. The trial court
denied the motion, concluding that there was a question of fact as to whether the
absence of (i) a County policy related to inspection of the sidewalks and (ii) a County
policy to ensure that third parties excavating sidewalks pursuant to permits granted
by the County return the sidewalks to their original condition may have constituted
deliberate indifference. The trial court also found that “[w]hile it may have been
unreasonable to expect [the County] to have fixed the hole within two weeks of [the
first] report, the evidence shows it took another eight months after [Stanley’s] fall to
6
do so, which a jury could find to be evidence of deliberate indifference.”4 The County
appeals this ruling, contending that the trial court erred in denying its motion for
summary judgment for two reasons: (1) Stanley cannot establish that an ADA
violation occurred, as she was not denied meaningful access to a County service as
a result of her disability, and (2) Stanley cannot show that the County intentionally
discriminated against her in violation of the ADA.
Title II of the Americans with Disabilities Act. Title II of the ADA provides as
follows: “Subject to the provisions of this title, no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be
4
As to whether Stanley was subjected to discrimination by the County by
reason of her disability, the trial court concluded that an issue of fact remained as to
whether Stanley was unable to see the cut-out and whether this constituted her
exclusion of the ability to safely traverse the sidewalk. In the trial court’s judgment,
a jury could find that the County failed to satisfy the requirements of the ADA
because the risk of falling into an unrepaired hole could disproportionately impact a
person like Stanley who is visually impaired as opposed to a person who could see
the hole and avoid falling into it. Analogizing this case to Cohen v. City of Culver
City, 754 F3d 690 (9th Cir. 2014) and Parker v. Universidad de Puerto Rico, 225 F3d
1 (1st Cir. 2000), the trial court further found that the County failed to eliminate a
barrier that would prevent a visually impaired person from traversing a County
sidewalk safely and that the County had an indisputable duty under the ADA to
maintain safe sidewalks for those citizens who suffer from a recognized disability.
7
subjected to discrimination by any such entity.”5 42 USC § 12132. To state a claim
under Title II of the ADA, a plaintiff must establish that: (1) she is a qualified
individual with a disability; (2) she was either excluded from participation in or
denied the benefits of the services, programs, or activities of a public entity or was
otherwise discriminated against by such entity; and (3) such exclusion, denial of
benefits or discrimination was by reason of her disability. See Shotz v. Cates, 256 F3d
1077, 1079 (II) (A) (11th Cir. 2001) (citing 42 USC § 12132); K v. City of South
Portland, 407 FSupp.2d 290, 295 (III) (A) (D. Me. 2006).6 The County is a “public
entity” within the meaning of the ADA. See 42 USC § 12131 (1) (A) (“[t]he term
‘public entity’ means . . . any State or local government”). The County does not
dispute that Stanley is a “qualified individual with a disability” under the ADA.
5
Public sidewalks are “services, programs, or activities” within the meaning
of Title II of the ADA. See Beckley v. City of Atlanta, No. 1:16-CV-1435-MHC, 2017
WL 6460300, at *3 (III) (B), n.4 (N.D. Ga. October 18, 2017). See also Barden v.
City of Sacramento, 292 F3d 1073, 1076-1077 (9th Cir. 2002).
6
In analyzing claims brought under an analogous federal statute, the
Rehabilitation Act of 1973, we have relied on federal cases. See Crisp County School
Dist. v. Pheil, 231 Ga. App. 139, 141-142 (2) (498 SE2d 134) (1998). Moreover,
“[g]iven the textual similarities between the [ADA and § 504 of the Rehabilitation
Act of 1973], the same standards govern claims under both, and [the Eleventh Circuit]
rel[ies] on cases construing Title II and § 504 interchangeably.” (Citations and
punctuation omitted.) Silberman v. Miami Dade Transit, 927 F3d 1123, 1133 (III) (A)
(11th Cir. 2019).
8
In addition, in cases where a plaintiff seeks to recover monetary damages under
Title II of the ADA, the plaintiff must show that “the entity [s]he has sued engaged
in intentional discrimination, which requires a showing of deliberate indifference.”
(Punctuation omitted.) Silberman v. Miami Dade Transit, 927 F3d 1123, 1134 (III)
(A) (11th Cir. 2019), citing Liese v. Indian River County Hosp. Dist., 701 F3d 334,
345, 348 (II) (C) (11th Cir. 2012) (addressing a claim under § 504 of the
Rehabilitation Act of 1973, 29 USC § 794). See also McCullum v. Orlando Regional
Healthcare System, 768 F3d 1135, 1146-1147 (III) (C) (11th Cir. 2014) (“[a] plaintiff
may prove discriminatory intent by showing that a defendant was deliberately
indifferent to his statutory rights”). Deliberate indifference “is an exacting standard
. . . which requires showing more than gross negligence.” (Citations and punctuation
omitted.) McCullum, 768 F3d at 1147 (III) (C). See Liese, 701 F3d at 344 (II) (C).
See also Americans with Disabilities: Practice & Compliance Manual § 2:217 (May
2021) (“[i]ntentional discrimination can be inferred from a defendant’s deliberate
indifference to the strong likelihood that the pursuit of its questioned policies will
likely result in a violation of federally protected rights”). “It requires proof that the
defendant knew that harm to a federally protected right was substantially likely and
failed to act on that likelihood.” (Citation and punctuation omitted.) Silberman, 927
9
F3d at 1134 (III) (A). “Where the substantial likelihood of harm is obvious, a jury
may infer that the defendant had actual knowledge of that substantial risk of harm.”
McCullum, 768 F3d at 1147 (III) (C), citing Farmer v. Brennan, 511 U. S. 825, 842
(B) (2) (114 SCt 1970, 128 LE2d 811) (1994).
The ADA was “enacted as [an] anti-discrimination statute[ ], not a means by
which every injury suffered by a disabled individual [is] subject to redress.” Williams
v. California Dept. of Corrections and Rehabilitation, 2017 WL 6016946, at *3 (E.D.
Cal. December 5, 2017). It emphasizes “systematic exclusion,” and this “systematic
exclusion is underscored by [its] implementing regulations, which make it clear that
a violation does not occur every time there is a temporary loss of accessibility[.]” Id.Additionally,
in order to hold a government entity liable [under the ADA], the plaintiff
must demonstrate that an official who at a minimum has authority to
address the alleged discrimination and to institute corrective measures
on the entity’s behalf had actual knowledge of discrimination in the
entity’s programs and failed adequately to respond. To qualify, that
“official” must be high enough up the chain-of-command that his or her
acts constitute an official decision by the entity not to remedy the
misconduct.
10
(Citations and punctuation omitted.) Silberman, 927 F3d at 1134 (III) (A). See also
Beckley v. City of Atlanta, No. 1:16-CV-1435-MHC, 2017 WL 6460300, at *8 (III)
(D) (N.D. Ga. October 18, 2017). In this case, Stanley seeks compensatory damages;
accordingly, the deliberate indifference standard applies to her ADA claim. See
Martin v. Halifax Healthcare Systems, 621 Fed. Appx. 594, 601 (II) (B) (11th Cir.
2015) (“to recover compensatory damages, [p]laintiffs must show that the exclusion
or denial was the result of intentional discrimination”).
Analysis. Pretermitting the question of whether Stanley was subjected to
discrimination by the County by reason of her disability, she is unable to prove that
the County acted with the deliberate indifference required to sustain her claim for
compensatory damages under the ADA. See, e.g., K, 407 FSupp.2d at 295-296 (III)
(A) (granting summary judgment to defendants on ADA claim where plaintiff could
not prove deliberate indifference for failure to provide accessible sidewalk based
upon icy patch). Stanley contends that the County’s act of not repairing the sidewalk
to make it safe for the public until eight months after it received actual knowledge of
its existence amounts to deliberate indifference. She also claims that the County
maintains a policy of intentional ignorance regarding defects and hazards in its
sidewalks which amounts to a deliberate indifference to the rights of its citizens,
11
particularly disabled persons who rely on the County to provide safe sidewalks. In
this regard, Stanley points to the fact that the County “maintains a policy that it does
not inspect [its] sidewalks actively and relies on a citizen to call in a complaint about
a sidewalk before [the County] will repair it.” The County points out, however, that
there is no evidence in the record that the County knew that harm to a federally
protected right was substantially likely and failed to act on that likelihood or that an
appropriate “official” within the County had actual knowledge of discrimination in
the County’s programs and failed to adequately respond.
The record reflects that the cut-out was reported to the County 13 days before
Stanley’s fall, but that it was not filled until mid-January, 2017, when Allen, the
Deputy Director of the Public Works for the County’s Road and Drainage
Department, was made aware of it. The trial court concluded that a question of fact
remained as to whether the County’s lack of sidewalk inspection procedure may have
constituted deliberate indifference. In making that determination, the trial court
highlighted that the County did not repair the sidewalk until eight months after
Stanley was injured. The trial court’s conclusion is erroneous for several reasons.
First, the mere absence of a sidewalk inspection procedure does not show that
the County (i) knew of a substantial likelihood that a federally protected right would
12
be violated and (ii) made a deliberate choice not to act on that likelihood. Cf.
McCullum, 768 F3d at 1147-1148 (III) (C). In T. W. ex rel. Wilson v. School Bd. of
Seminole County, Fla., 610 F3d 588 (11th Cir. 2010), a case alleging violation of
section 504 of the Rehabilitation Act, the Eleventh Circuit found that the plaintiff
could not prove that the defendant school board knew that harm to a federally
protected right was substantially likely and that the defendant failed to act on that
likelihood. Id. at 604 (III) (B). In reaching that conclusion, the Circuit Court
determined that the record established that the school board investigated all
complaints of abuse lodged against the plaintiff’s teacher and was unable to
substantiate them. Id. Implicit in this determination is the following corollary: That
a failure to address substantiated claims of abuse would be sufficient to prove the
defendant knew that harm to a federally protected right was substantially likely and
that the defendant failed to act on that likelihood.
In this case, Stanley has provided no evidence that the County eschews a
sidewalk repair policy in order to discriminate against persons with disabilities or that
the County receives numerous and repeated complaints about problems with its
sidewalks to which it does not respond or that go intentionally ignored. See Ferguson
v. City of Phoenix, 157 F3d 668, 675 (9th Cir. 1998) (affirming grant of summary
13
judgment to City in hearing-disabled plaintiffs’ suit alleging that City operated its 911
emergency service in a discriminatory way on the ground that City’s actions did not
amount to deliberate indifference towards the plaintiffs, but rather, “not uncommon
bureaucratic inertia”). Cf. Davis v. Monroe County Bd. of Educ., 526 U. S. 629 (119
SCt 1661, 143 LE2d 839) (1999) (reversing grant of motion to dismiss in action
under Title IX where plaintiff alleged months-long pattern of sexual harassment
against her daughter and multiple other female students which was reported to
principal who did nothing and county school system had no established policy in
place for responding to peer sexual harassment).7 That Stanley has offered evidence
of an issue with one sidewalk in the County’s jurisdiction does not prove that the
County’s established policy of relying on citizen complaints proves that it acted with
deliberate indifference. Here, Stanley has presented no evidence of problems with
other sidewalks within the County’s jurisdiction. Accordingly, she cannot show that
the County’s citizen-driven reporting policy “amounts to a deliberate indifference to
7
Although Davis involves a claim under Title IX of the Education
Amendments of 1972, at least three Circuit Courts “have applied Davis’s framework
to [claims under the ADA and § 504] . . . because the statutory language in Title IX
. . . parallels the language in the Rehabilitation Act and the ADA.” (Citations
omitted.) Vargas v. Madison Metro. School District, No. 18-CV-272-slc, 2019 WL
2173928, at *4 (II) (A) (W.D. Wis., May 20, 2019).
14
the rights of its citizens.” Expecting the County to inspect every sidewalk within its
jurisdiction when there is no evidence — save an issue with one sidewalk — that its
reliance on citizen reporting is inadequate does not show deliberate indifference.
Second, as other courts have indicated, the ADA is intended to prevent
consistent and discriminatory denial of access; isolated or temporary interruptions in
public services are not violations of the ADA. See Pack v. Arkansas Valley
Correctional Facility, 894 P2d 34, 38 (II) (Colo. App. 1995) (plaintiff’s claim under
ADA that ice and snow accumulation in handicapped parking zone denied him access
to correctional facility properly dismissed on the ground that the ADA “was not
intended to create a remedy for a claim based on an isolated act of simple
negligence”). Cf. Lawson v. City of Atlanta, 2019 WL 3539816 (N.D. Ga. July 10,
2019) (denying motion to dismiss in class action brought by disabled plaintiffs,
alleging systemic failures on the part of the City to comply with the ADA’s
requirements to make sidewalks accessible to those with mobility impairments).
Third, and contrary to the trial court’s conclusion, the relevant time frame is not
the eight months following Stanley’s fall, but the thirteen days before her fall. As set
out above, deliberate indifference requires both knowledge that a harm to a federally
protected right is substantially likely, and a failure to act upon that likelihood. See
15
Silberman, 927 F3d at 1134 (III) (A). By definition, the County’s acts/omissions after
the incident at issue cannot support a claim under the ADA. See Davis, 526 U. S. at
642-643 (II) (A) (noting in Title IX case that deliberate indifference must “cause[ ]
the discrimination”) (citation and punctuation omitted). See also K. C. v. Marshall
County Bd. of Educ., 762 Fed. Appx. 226, 232 (II) (B) (6th Cir. 2019) (concluding in
case alleging claims under the ADA and § 504 that “post-complaint faults that
plaintiff alleges in the [defendant’s] handling of his complaint . . . cannot constitute
deliberate indifference because, even assuming those actions were deficient, they did
not cause [plaintiff] to suffer any further abuse”). In this case, while a delay of 13
days to undertake repair of the cut-out might amount to negligence or even gross
negligence, it does not rise to the level of deliberate indifference required to sustain
a claim for damages under the ADA. See Liese, 701 F3d at 344 (II) (C) (“deliberate
indifference plainly requires more than gross negligence”). See also Ferguson, 157
F3d at 675 (“bureaucratic inertia” does not amount to the deliberate indifference or
discriminatory animus required to sustain claim under the ADA).
Fourth, there is no evidence that an “official” within the County had actual
knowledge of the open cut-out until January 2017, almost eight months after
Stanley’s fall. While a County employee had knowledge of the open cut-out 13 days
16
prior to Stanley’s fall, there is no evidence that this notice was provided to “an
official” within the County who “retains substantial supervisory authority.”
Lavandeira v. Tampa Police Dept., 2020 WL 6545983, at *4 (I) (B) (M.D. Fla.
November 6, 2020) (iterating that plaintiff seeking damages under ADA and/or § 504
“must allege sufficient facts to establish that [the defendant] official’s decision or
action constitutes an official decision by [the defendant] itself not to remedy the
alleged discrimination”) (citations and punctuation omitted), citing Liese, 701 F3d at
350 (II) (D). In fact, once Allen, the Deputy Director of the Public Works for the
County’s Road and Drainage Department, became aware of the cut-out, it was
immediately repaired. Moreover, there is no evidence that officials within the County
were on notice of any discriminatory incidents resulting from the County’s citizen-
reporting policy which were ignored.
According to Stanley, there is ample evidence from which a jury could infer
that the County “actually had knowledge of this cut-out back in September 2013[,]
when Harkleroad requested they attend a site visit”; Stanley claims that instead of
attending the site visit, however, a senior engineer with the County “arrogantly”
replied in an email on which Pelton was copied, “[l]ooking at your site plan, I don’t
see any obvious conflicts with our traffic signal equipment so no need for us to
17
attend.” But, both Pelton, the Deputy Director of the Public Works for the County’s
Transportation Division, and Allen, the Deputy Director of the Public Works for the
County’s Road and Drainage Department, testified that if the County permits a
company to perform utility cuts, the company is also expected to repair the cut.
Moreover, the record reflects that at the time the site visit offer was made on October
21, 2013, to the County’s Transportation Division, which has no control over
sidewalks, the cut-out had been filled by the utility locating firm. Accordingly,
Stanley’s assertion that the County’s response to Harkleroad and/or its failure to
attend a site visit amounted to deliberate indifference on the part of the County
towards disabled persons like Stanley is without merit. Cf. Beckley, 2017 WL
6460300, at *8 (III) (D) (granting City’s motion for summary judgment on plaintiff’s
claim for compensatory damages under the ADA where plaintiff failed to produce
evidence “from which a jury could conclude that any specific person (or persons)
[with supervisory authority] was deliberately indifferent to her needs”).
In support of her claim that the County’s “head-in-the-sand policy” amounts
to deliberate indifference and violates the ADA, Stanley cites to several cases where
courts have concluded that facially neutral policies violate the ADA when such
policies unduly burden disabled persons. But, all of the cases relied on by Stanley
18
involved claims for “reasonable accommodation” or meaningful access, and
reasonable modification; none considered whether a government or municipal policy
or lack thereof constituted deliberate indifference and only one involved a plaintiff
seeking compensatory damages. See McGary v. City of Portland, 386 F3d 1259, 1265
(2) (9th Cir. 2004) (plaintiff adequately stated claim under Title II of the ADA when
he alleged that city failed to reasonably accommodate his disability by denying him
additional time to comply with nuisance abatement policy; noting that Ninth Circuit
has “repeatedly recognized that facially neutral policies may violate the ADA when
such policies unduly burden disabled persons, even when such policies are
consistently enforced”); Martin v. PGA Tour, Inc., 204 F3d 994 (9th Cir. 2000)
(allowing professional golfer to use golf cart during tournament reasonable
accommodation); Crowder v. Kitagawa, 81 F3d 1480 (9th Cir. 1996) (reversing grant
of summary judgment and remanding for district court to determine whether
plaintiffs’ — class of visually impaired persons who use guide dogs — proposed
modifications to State of Hawaii’s 120-day quarantine policy are reasonable under the
ADA); Cooley v. City of Los Angeles, 2019 WL 3766554 (C.D. Cal. August 5, 2019)
(disabled unhoused plaintiffs adequately stated claim for reasonable accommodation
under ADA when they alleged that city seized and destroyed their property without
19
allowing them extra time to gather their belongings before performing sidewalk
cleaning).
While Stanley is correct that public entities may be liable for a failure to make
a reasonable modification to their policies, practices, or procedures to avoid
discrimination on the basis of a disability, Stanley has not asserted a claim for
reasonable modification. Cf. Siskos v. Secretary, Dept. of Corrections, 817 Fed.
Appx. 760, 764 (11th Cir. 2020) (“[p]ublic entities must make reasonable
modifications to their policies . . . when necessary to avoid discrimination on the
basis of a disability unless making the modifications would fundamentally alter the
nature of the services, programs, or activities”) (citation and punctuation omitted).
Moreover, she has not pointed out a specific case where the lack of a policy alone
amounts to deliberate indifference. Similarly, to the extent Stanley is arguing that the
incident would not have happened if the County had adopted and implemented a more
proactive sidewalk inspection policy, we find this contention speculative and
unsupported by any evidence in the record. As indicated previously, Stanley has
failed to point to any other incidents of substantial similarity where the County’s
alleged “head-in-the-sand” sidewalk policy has resulted in the denial of access to the
sidewalks or discrimination on the basis of individuals’ disabilities. Lastly, to the
20
extent Stanley is requesting that the County have such a policy in place in order to
avoid discrimination on the basis of a disability, she has neither made such a request
to the County nor asserted such a claim in her complaint for damages. Compare Nat.
Federation of the Blind v. Lamone, 813 F3d 494 (4th Cir. 2016) (blind plaintiffs
fulfilled obligation to show their proposed modification to Maryland’s absentee
voting program to enable them to vote electronically was reasonable); Beckley, 2017
WL 6460300, at *1 (disabled plaintiff sought order requiring the City to make
“‘reasonable modifications’” to an intersection so it could be accessed by disabled
individuals using wheelchairs). For the foregoing reasons, we conclude that Stanley
has failed to establish the deliberate indifference required to sustain a claim for
compensatory damages under the ADA. Accordingly, we reverse the trial court’s
denial of the County’s motion for summary judgment on this claim.
Case No. A21A0821
In addition to asserting a claim under the ADA, Stanley also alleged that the
condition of the sidewalk constituted a public nuisance under OCGA §§ 41-1-1, 41-1-
3, for which the County was liable, and that the County and Pelton in his official
capacity were liable for negligence per se and negligence. The trial court dismissed
the negligence claims, concluding that Stanley had not shown or even alleged that the
21
County had waived its sovereign immunity as to the claims, and that because Pelton
was acting in his official capacity, Stanley’s claims against Pelton are claims against
the County, which also have not been waived.8 The trial court also dismissed the
nuisance claim, concluding that sovereign immunity bars an action for personal injury
against a county arising from nuisance. Stanley appeals these rulings. We review de
novo the trial court’s rulings granting the motions to dismiss. See Beasley v. Ga.
Dept. of Corrections, ___ Ga. App. ___ (Case No. A21A0593, decided June 22,
2021).
1. Stanley contends that the trial court erred in dismissing her negligence
claims because the County and Pelton violated a ministerial duty and are, therefore,
not entitled to official immunity. Stanley contends that this case “turns solely on
whether [Pelton] — a public works director for the traffic division, employed by
DeKalb County, violated a ministerial duty imposed by the policies and training that
he was required to follow.” Stanley’s enumeration of error is moot and entirely
8
The trial court noted that Stanley’s First Amended Complaint appeared to
assert a claim against Pelton in his individual capacity, but that Stanley had neither
sought to add Pelton individually nor did she amend the style of the case to indicate
that Pelton was being sued in his individual capacity. Regardless, five months after
the trial court issued this order, it granted Stanley’s and Pelton’s consent motion
dismissing Pelton from the case without prejudice and noting that he “shall no longer
be listed as [a] party defendant[ ] in this action.”
22
without merit for two reasons. First, Stanley has no claims pending against Pelton.
Stanley never properly asserted an individual capacity claim against Pelton, and in
fact she consented to Pelton’s dismissal as a defendant from this action; accordingly,
no claims remain pending against him. Second, the doctrine of “official immunity,”
which Stanley contends applies to mandate reversal of the trial court’s order
dismissing her negligence claim against the County, is a defense for public officers
and employees sued in their individual capacity; it is not applicable to counties. See
Klingensmith v. Long County, 352 Ga. App. 21, 23 (1) (833 SE2d 608) (2019)
(“[s]overeign immunity is the immunity provided to governmental entities and to
public employees sued in their official capacities[;] [o]n the other hand, the doctrine
of official immunity, also known as qualified immunity, offers public officers and
employees limited protection from suit in their personal capacity”) (citation and
punctuation omitted). To the extent Stanley is arguing that the proper maintenance
of the sidewalk is a ministerial duty — as opposed to a governmental function —
subjecting the County to liability for negligence, there is no merit to this argument.
See Rutherford v. DeKalb County, 287 Ga. App. 366, 367 (1) (a), (b) (651 SE2d 771)
(2007) (distinction between governmental and ministerial/proprietary functions
23
applies to cities, not counties). It follows that the trial court properly dismissed
Stanley’s negligence claims.
2. Stanley contends that the trial court erred in dismissing her nuisance claim
because the County “has no immunity for a nuisance that violates a citizen’s
constitutional rights.” This enumeration also is without merit.
“Sovereign immunity protects all levels of governments from legal action
unless they have waived their immunity from suit. Any suit against the State that is
barred by sovereign immunity is subject to dismissal under OCGA § 9-11-12 (b) (1)
for lack of subject-matter jurisdiction.” (Citations, punctuation, and footnotes
omitted.) Gwinnett County v. Ashby, 354 Ga. App. 863, 864 (842 SE2d 70) (2020).
Sovereign immunity applies equally to counties. See id. A county’s “[s]overeign
immunity is only waived by an act of the General Assembly specifically providing for
waiver and delineating the extent of that waiver.” (Footnote omitted.) Id. at 864-865.
See also OCGA § 36-1-4 (“[a] county is not liable to suit for any cause of action
unless made so by statute”); Bd. of Commrs. of Glynn County v. Johnson, 311 Ga.
App. 867, 869 (1) (717 SE2d 272) (2011) (“[a]s provided in Georgia’s Constitution,
sovereign immunity extends to the counties, and a county’s sovereign immunity can
only be waived by an Act of the General Assembly which specifically provides that
24
sovereign immunity is thereby waived and the extent of such waiver”) (citation and
punctuation omitted). “Normally, a county is not liable to suit for any cause of action
unless made so by statute. This includes actions brought under a theory of negligence
as well as actions brought under a theory of nuisance, unless, of course, the alleged
nuisance amounts to a taking of private property for public purposes.” (Citation and
punctuation omitted.) Davis v. Effingham County Bd. of Commrs., 328 Ga. App. 579,
582 (1) (760 SE2d 9) (2014). See also Gatto v. City of Statesboro, ___ Ga. ___ (2)
(Case No. S20G0651, decided June 21, 2021) (explaining that the “‘nuisance
exception’ is a misnomer, and it is more apt to refer to the ‘nuisance doctrine’ when
evaluating whether municipal liability may be imposed in a given case”). “Sovereign
immunity bars any action for personal injury or wrongful death against a county
arising from nuisance or inverse condemnation.” (Citations and punctuation omitted.)
Rutherford, 287 Ga. App. at 369 (2). In this case, Stanley is alleging personal injuries,
not a taking of private property via a public nuisance. Accordingly, the trial court
properly dismissed her nuisance claim against the County. See Johnson, 311 Ga. App.
at 871 (1) (c).9
9
While Stanley acknowledges that sovereign immunity bars any action for
personal injury or wrongful death against a county arising from nuisance or inverse
condemnation, she invites us to make an exception when a violation rises to the level
25
Judgment in Case No. A21A0821 affirmed; judgment in Case No. A21A0820
reversed. Doyle, P. J., and Reese, J., concur.
of a constitutional deprivation of liberty and equal protection. But, the Georgia
Supreme Court has made clear that “only the General Assembly has authority to enact
a waiver of sovereign immunity, judge-made ‘exceptions’ are unauthorized and have
no validity.” Gatto, ___ Ga. at (2), citing Ga. Dept. of Nat. Resources v. Center for
a Sustainable Coast, Inc., 294 Ga. 593, 599-600 (2) (755 SE2d 184) (2014).
26