DARYL DRISKELL v. DOUGHERTY COUNTY, GEORGIA

SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, 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
March 16, 2022
In the Court of Appeals of Georgia
A21A1279. DRISKELL v. DOUGHERTY COUNTY et al.
A21A1280. CITY OF ALBANY v. DOUGHERTY COUNTY.
HODGES, Judge.
In this tort action, Daryl Driskell sued the City of Albany, Dougherty County,
and City code enforcement officer Melinda Gray for damages after Gray struck
Driskell’s vehicle. In Case No. A21A1279, Driskell appeals from the trial court’s
order granting summary judgment to the County and denying his cross-motion for
partial summary judgment, arguing that the County is liable for Gray’s conduct based
upon a variety of legal theories, including that the County is engaged in a joint
enterprise with the City. In Case No. A21A1280, the City appeals from the trial
court’s order denying its motion for summary judgment, asserting that: (1) an
exculpatory clause in the intergovernmental agreement between the City and the
County is not an indemnity provision; and (2) the City’s potential indemnity liability
should be capped at $500,000.1 We have consolidated these cases for decision on
appeal and, for the following reasons, we conclude that mutual control is an essential
element of a joint venture claim against contracting governmental entities, and we
disapprove some of our prior authorities that state the contrary. We further conclude
that the trial court correctly determined that the record does not contain any evidence
of mutual control, an essential element of a joint venture claim. Therefore, we affirm
1
In view of Driskell’s concession that Gray was not a proper party defendant
pursuant to OCGA § 36-92-3 (b), the trial court granted Gray’s motion to dismiss.
After Driskell further acknowledged that the ante litem notice he sent to the City was
insufficient, the trial court granted the City’s motion to dismiss Driskell’s action as
time-barred. See OCGA § 36-33-5 (e). The trial court realigned Driskell’s case as
“Driskell v. Dougherty County v. City of Albany, as . . . Dougherty County in its
answer asserted a claim for contractual indemnification against the City . . . based on
language in [their] intergovernmental agreement. . . .” The trial court’s denial of the
City’s motion for summary judgment on this point forms the basis of the City’s appeal
in Case No. A21A1280.
2
the trial court’s judgment in Case No. A21A12792 and dismiss the City’s appeal in
Case No. A21A1280 as moot.
Viewed in a light most favorable to the non-movants,3 the record reveals that
the City and the County executed an intergovernmental agreement in 2014 “for the
City to furnish [c]ode [e]nforcement [s]ervices within the confines of the
unincorporated area of [the] County[.]”4 As part of the agreement, the City was to
employ an individual who would be dedicated to providing County code enforcement
services, and Gray was so employed. In April 2017, Driskell filed suit against the
2
We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of a
hearing en banc on the question of disapproving language in City of Eatonton v. Few,
189 Ga. App. 687, 690 (2) (377 SE2d 504) (1988), DeKalb County v. Lenowitz, 218
Ga. App. 884, 887 (1) (463 SE2d 539) (1995), Lafontaine v. Alexander, 343 Ga. App.
672, 681 (6) (808 SE2d 50) (2017), and Ga. Dept. of Transp. v. Delor, 351 Ga. App.
414, 423 (6) (830 SE2d 519) (2019).
3
“We review a grant or denial of summary judgment de novo and construe the
evidence in the light most favorable to the nonmovant. Because this opinion
addresses cross-motions for summary judgment, we will construe the facts in favor
of the nonmoving party as appropriate.” (Citation and punctuation omitted.) Crown
Series, LLC v. Holiday Hospitality Franchising, LLC, 357 Ga. App. 523 (851 SE2d
150) (2020).
4
For additional discussion of the parties’ intergovernmental agreement, see
City of Albany v. Dougherty County, 352 Ga. App. 664, 665-667 (835 SE2d 681)
(2019).
3
City, the County, and Gray, seeking damages stemming from a 2015 accident in
which Gray struck Driskell’s vehicle from behind.
The County moved for summary judgment, denying liability for the accident
involving a City employee. In opposing the County’s motion and moving for partial
summary judgment, Driskell contended, inter alia, that the County had entered into
an agreement with the City for the “joint” provision of code enforcement services and
was therefore engaged in a joint enterprise with the City which could impose liability
on the County for Gray’s actions. Following a hearing, the trial court granted the
County’s motion for summary judgment and denied Driskell’s cross-motion for
partial summary judgment. In addition, the trial court denied the City’s motion for
summary judgment in which the City asserted that an indemnity provision in the
parties’ intergovernmental agreement was actually a limitation-of-liability clause and
that its indemnity liability, if any, should be capped at $500,000. These appeals
followed.
Case No. A21A1279
1. Driskell first asserts that the trial court erred in granting the County’s motion
for summary judgment because the City and the County were engaged in a joint
4
enterprise pursuant to their intergovernmental agreement and, therefore, the County
could be jointly liable. We do not agree.
(a) Generally, Georgia law provides that “the theory of joint venturers arises
where two or more parties combine their property or labor, or both, in a joint
undertaking for profit, with rights of mutual control (provided the arrangement does
not establish a partnership), so as to render all joint venturers liable for the negligence
of the other.” Kissun v. Humana, Inc., 267 Ga. 419, 420 (479 SE2d 751) (1997).
“Without the element of mutual control, no joint venture can exist.” (Emphasis
supplied.) Rossi v. Oxley, 269 Ga. 82, 83 (1) (495 SE2d 39) (1998). “For a joint
venture to exist, there must be not only a joint interest in the purpose of the enterprise
but also an equal right, express or implied, to direct and control the conduct of one
another in the activity causing the injury. . . .” (Citation and punctuation omitted.)
Williams v. Chic-fil-A, Inc., 274 Ga. App. 169, 170 (617 SE2d 153) (2005).
Importantly, “[t]he mere existence of a business interdependency does not create a
joint venture.” (Citation and punctuation omitted.) Lafontaine v. Alexander, 343 Ga.
App. 672, 680 (6) (808 SE2d 50) (2017).
It is likewise true that the Georgia Constitution provides that government
entities “may contract . . . with each other . . . for joint services, for the provision of
5
services, or for the joint or separate use of facilities or equipment[.]” Ga. Const. of
1983, Art. IX, Sec. III, Par. I (a); see also Lafontaine, 343 Ga. App. at 681 (6).
However, no express provision of the Intergovernmental Contracts Clause of our
Constitution negates the general requirement for mutual control in joint ventures
between contracting government entities. See Ga. Const. of 1983, Art. IX, Sec. III,
Par. I (a). Nor does there appear to be any authority from the Supreme Court of
Georgia authorizing such a departure. What is left, then, is that there must be proof
of mutual control to support a joint venture claim. See Kissun, 267 Ga. at 420.
In this case, after first defining how joint ventures arise under Georgia law, the
trial court concluded that the record did not support “a finding [that] there exists a
genuine issue of material fact over whether the County had or exercised mutual
control over the City employee hired by the City to perform services in the
unincorporated portions of Dougherty County pursuant to the [contract] in issue.” In
reaching its conclusion, the trial court found that
Dougherty County had no right to and did not exercise any control over
the day-to-day functions, duties and work of [the employee] even though
she was only assigned to perform services in the unincorporated portions
of the County. . . . The evidence in the record shows absolutely no
evidence of mutual control, an essential element of any joint venture. . . .
6
In reaching its conclusion, the trial court factually distinguished two cases Driskell
cited for the proposition that the element of mutual control does not apply to
government entities — DeKalb County v. Lenowitz, 218 Ga. App. 884, 887 (1) (463
SE2d 539) (1995) and City of Eatonton v. Few, 189 Ga. App. 687, 690 (2) (377 SE2d
504) (1988) — because both cases involved ongoing nuisances. However, a close
reading of our case law finds no support for the proposition that mutual control is not
an essential element to establishing joint venture liability among government entities.
(b) This proposition appears to have its genesis in Few, in which our Court
stated that “it is clear that a ‘joint enterprise’ may nevertheless be found to exist even
though a profit motive and mutual control are otherwise lacking.”5 (Emphasis
supplied.) 189 Ga. App. at 690 (2). In support of this statement, Few cited Seckinger
& Co. v. Foreman, 252 Ga. 540, 541 (1) (314 SE2d 891) (1984). In Seckinger, our
Supreme Court determined that “one partner in a joint venture may be liable for the
worker’s compensation benefits of the other joint venturer’s employees.” Id. at 541(2).
5
Few involved an intergovernmental contract between Putnam County and the
City of Eatonton to operate a public swimming pool.
7
However, Seckinger does not stand for the proposition that mutual control is
not required to show a joint venture between government entities, as it simply
determined that the agreement at issue “was denominated a joint venture agreement
and provided that it should be construed and deemed to be a joint venture” without
any further analysis or discussion. Id. at 541 (1). Moreover, despite Few’s statement
to the contrary, Seckinger did not consider whether the mutual control element of a
joint venture was satisfied. Id. In fact, there is no mention of mutual control in
Seckinger at all. Rather, Seckinger simply found that an agreement constituted a joint
venture because the parties designated the agreement as a joint venture — or, stated
succinctly, the agreement was a joint venture because the parties called it a joint
venture. Importantly, Seckinger is a worker’s compensation case that specifically
noted that its result of holding one company liable for the benefits of a different
company’s employee was motivated by the beneficent purpose of the worker’s
compensation system — a then-prevailing purpose that has no equivalent in joint
ventures.6 Id. at 541 (2). Accordingly, Seckinger does not stand for a broad exception,
6
Seckinger distinguished the cases of State Dept. of Revenue v. McCray, 101
Ga. App. 348 (114 SE2d 64) (1960) and City of Brunswick v. Taylor, 87 Ga. App. 751(75 SE2d 203) (1953), finding inapplicable the principle that “where an employee has
two employers, the employer having the right to control the employee is responsible
for paying compensation benefits to that employee.” 252 Ga. at 542 (2). The Supreme
8
applicable to government entities, to the requirement to show mutual control to
support a joint venture claim, and Few was incorrect to rely on it to create such an
exception.7
In the almost 40 years since it was decided, Few’s progeny have relied upon
Few without any additional analysis or discussion and have incorrectly characterized
contracts between government entities as an exception to the general rule that mutual
control is required to demonstrate a joint venture. See Ga. Dept. of Transp. v. Delor,
351 Ga. App. 414, 423 (6) (830 SE2d 519) (2019); Lafontaine, 343 Ga. App. at 681
Court reasoned that McCray and Taylor were inapposite because those cases
“involved governmental units, not a joint venture between private corporations.” Id.
Therefore, the Court seems to suggest that mutual control, at least in the very limited
context of worker’s compensation law, is not a requirement for private employers, but
is a requirement for government employers. This reasoning further supports our
conclusion that there is no exception, for contracting governmental entities, to the
requirement to show mutual control in support of a joint venture claim. Compare Ga.
Dept. of Transp. v. Delor, 351 Ga. App. 414, 423 (6) (830 SE2d 519) (2019)
(characterizing two cases that “involved joint ventures between governmental bodies
concerning jointly managed public works or services,” and which did not require
mutual control, as “exceptions to the rule” that “there must be not only a joint interest
in the purpose of the enterprise but also an equal right, express or implied, to direct
and control the conduct of one another in the activity causing the injury”).
7
In fact, three dissenters in Few argued that the record did not include any
evidence of mutual control and that “since the material element of right of joint
control was missing, there was no joint enterprise. . . .” 189 Ga. App. at 696 (b)
(Sognier, J., dissenting).
9
(6); Lenowitz, 218 Ga. App. at 887 (1). For example, Lenowitz involved an
intergovernmental agreement between the City of Atlanta and DeKalb County to
provide sewer services in unincorporated DeKalb County. 218 Ga. App. at 885. When
the sewer system leaked onto a residential landowner’s property, the landowner sued
the City and the County, with each claiming the other was responsible. Id. Based
upon evidence that “the [C]ity and [C]ounty jointly own[ed] parts of the sewer
system, that the [C]ity control[led] some of these parts, and that the [C]ounty
control[led] others[,]” this Court cited Few without discussion and determined that
a joint enterprise existed between the City and the County which could impose
liability on the County for a sewage leak coming from a portion of the system
exclusively controlled by the City. Id. at 887 (1).
In Lafontaine, this Court reversed the denial of a motion for summary judgment
filed by a defendant due to the plaintiffs’ failure to supply evidence of mutual control
and, therefore, a joint venture, in a case involving private entities. 343 Ga. App. at
673. However, in reviewing the cases cited by the plaintiffs “for the proposition that
the rule that a joint venture does not require an undertaking for profit and with mutual
control[,]” we again acknowledged Few as creating an exception, only for contracting
government entities, to the rule requiring proof of mutual control. Id. at 681 (6).
10
Finally, in Delor, we referenced Few and Lenowitz “for the proposition that a joint
venture does not require an undertaking for profit and with mutual control” when
governmental entities are involved. 351 Ga. App. at 423 (6). Once again, without
discussion, we simply noted that these cases represent “exceptions to the rule” that
“[w]ithout the element of mutual control, no joint venture can exist.” (Citations and
punctuation omitted.) Id.
(c) Having concluded that Few was wrongly decided, we next determine that
the doctrine of stare decisis does not compel us to perpetuate Few’s erroneous
reliance upon Seckinger. “Stare decisis is an important principle that promotes the
rule of law[.] . . . In considering whether to reexamine a prior erroneous holding, we
must balance the importance of having the question decided against the importance
of having it decided right.” (Citation, punctuation, and emphasis omitted.) Harrison
v. McAfee, 338 Ga. App. 393, 400-401 (2) (c) (788 SE2d 872) (2016). “Factors to
consider include (1) the age of the precedent, (2) the reliance interests at stake, (3) the
workability of the decision, and, most importantly, (4) the soundness of its
reasoning.” Id. at 401 (2) (c).
First, Few is now almost 40 years old. Second, we note that, during the almost
40 years since it was decided, only four reported cases have cited Few for the specific
11
proposition that mutual control need not be shown to establish a joint venture claim.
See Delor, 351 Ga. App. at 423 (6); Lafontaine, 343 Ga. App. at 681 (6); Williams,
274 Ga. App. at 171, n. 2 (cited in parenthetical only); Lenowitz, 218 Ga. App. at 887
(1). But in three of those cases, this Court merely acknowledged, without relying
upon, Few’s misstatement, characterizing it as an exception to the general rule. See
Delor, 351 Ga. App. at 423 (6); Williams, 274 Ga. App. at 171, n. 2; Lafontaine, 343
Ga. App. at 681 (6). Therefore, only one reported case in almost 40 years has relied
upon Few’s misstatement, suggesting that the misstatement is not so venerable as to
be unquestioningly maintained.8 See Lenowitz, 218 Ga. App. at 887 (1). Third,
correcting Few’s misstatement is sound given Few’s lack of workability. Without any
analysis, and with no express constitutional provision, statutory basis, or Supreme
Court precedent authorizing the creation of an exception for governmental entities,
Few disregarded the general rule that mutual control is necessary to impose joint
venture liability and created an exception which inexplicably placed government
entities on different footing from private litigants in a way which subjected them to
8
See also Woda Cooper Dev. v. City of Warner Robins, 2021 U. S. Dist.
LEXIS 52767, *21 (III) (A), n. 6, 2021 WL 1093630 (M.D. Ga. March 22, 2021)
(finding that “the holding in Few is narrow and limited to instances where the
Georgia Constitution authorizes a joint agreement such that a joint venture is
obvious”).
12
greater liability exposure.9 And fourth, we have already outlined the deficiency with
Few’s reliance upon Seckinger.
In short, Seckinger does not stand for the proposition that mutual control is not
an element of a joint venture claim against contracting government entities, and Few
erred in stating otherwise. Moreover, Few’s progeny have incorrectly recognized an
exception to the general rule that mutual control must be shown. Absent any contrary
express provision of the Georgia Constitution, statutory mandate, or authority from
the Supreme Court, however, we hold that mutual control is a required element of a
joint venture claim involving contracting government entities. Therefore, we
disapprove Few to the extent it can be read to carve out an exception to the general
rule that proof of mutual control is required to pursue a joint venture claim. 189 Ga.
App. at 690 (2). We further disapprove language in the following cases that relied on
9
Indeed, as the trial court aptly noted,
[e]liminating the requirement of mutual control is inconsistent with
Georgia’s policy of basing liability on one’s degree of fault as is
required by our apportionment statute. Furthermore, eliminating any
requirement that there be evidence of mutual control for there to be
liability based on a joint venture would make all government entities
vicariously liable for each other’s governmental employees over whom
they have no control and no right to direct.
13
Few to recognize an exception to the general rule, thus perpetuating Few’s erroneous
interpretation of Seckinger: Delor, 351 Ga. App. at 423 (6); Lafontaine, 343 Ga. App.
at 681 (6); Lenowitz, 218 Ga. App. at 887 (1).
(d) Against this backdrop, the trial court properly applied the general principle
of joint ventures and correctly concluded that the record fails to show mutual control
of the employee at issue by the City and the County. The record does not indicate that
the County even had the right to control Gray’s activities. When reviewing the record
in the light most favorable to Driskell as the nonmovant, the undisputed evidence
reveals that although the County provided a truck for Gray’s use, the County did not
control her day-to-day activities or provide her with direction on how to perform her
work. Similarly, County officials provided uncontroverted testimony that they had no
supervisory authority over Gray or her immediate supervisor. Accordingly, we affirm
the trial court’s order granting the County’s motion for summary judgment and
denying Driskell’s motion for partial summary judgment.10
10
Driskell’s arguments, including pointing to facts that the County controlled
Gray’s activities through the passage of zoning legislation, that Gray’s position was
funded by the County, and that the County provided Gray’s truck, are immaterial in
view of direct testimony that no County official had the right to exercise control over
Gray’s activities.
14
2. Regardless of whether we need to consider Driskell’s remaining arguments
in view of our holding in Division 1, see, e.g., Banks v. Brotherhood Mut. Ins. Co.,
301 Ga. App. 101, 104 (2) (686 SE2d 872) (2009) (“A grant of summary judgment
must be affirmed if right for any reason. It is the grant itself that is to be reviewed for
error, and not the analysis employed.”) (citation and punctuation omitted), the
absence of evidence of control over Gray by the County necessarily precludes
Driskell’s alternative arguments for recovery based upon agency and the borrowed
servant doctrine. See, e.g., Healthcare Staffing, Inc. v. Edwards, 360 Ga. App. 131,
133 (1) (860 SE2d 874) (2021) (“The ‘borrowed servant’ rule is an exception to the
doctrine of respondeat superior. If a master lends his servants to another, then the
master is not responsible for any negligence of the servant committed within the
scope of his employment by the other. In order for an employee to be a borrowed
employee, the evidence must show that (1) the special master had complete control
and direction of the servant for the occasion; (2) the general master had no such
control; and (3) the special master had the exclusive right to discharge the servant.”)
(citation and punctuation omitted); Satisfaction & Svc. Housing v. Southtrust Bank,
283 Ga. App. 711, 713 (642 SE2d 364) (2007) (“To prove actual agency, the
purported principal must have assumed the right to control the method, manner, and
15
time of the purported agent’s work, as distinguished from the right merely to require
certain definite results in conformity to the contract. The right to control the
purported agent’s time means the right to control the hours of work. The right to
control the method and manner of work means the right to tell the purported agent
how to perform all details of the job, including the tools he should use and the
procedures he should follow.”) (citations and punctuation omitted). Therefore, we
affirm the trial court’s order granting the County’s motion for summary judgment on
those bases as well.
Case No. A21A1280
3. In its related appeal, the City argues that the trial court erred in denying its
motion for summary judgment because an exculpatory clause in the parties’
intergovernmental agreement lacks “various hallmarks” of an indemnity clause.11 The
City also claims that its “potential indemnity liability” should be capped at $500,000,
even though the trial court did not address this argument. Because we affirm the trial
court’s grant of summary judgment to Dougherty County in Case No. A21A1279, the
City’s appeal challenging the trial court’s order denying its motion for summary
11
This is the second appearance of this issue in this Court. See City of Albany,
352 Ga. App. at 668 (2).
16
judgment is rendered moot. Therefore, we dismiss the appeal in Case No. A21A1280
as moot. See, e.g., Estes v. G&W Carriers, 354 Ga. App. 156, 159 (2) (840 SE2d 486)
(2020).
Judgment affirmed in Case No. A21A1279. Appeal dismissed as moot in Case
No. A21A1280. Miller, P. J., and Pipkin, J., concur.
17