ROBERTS et al.
MULKEY et al.
ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Ellington, Presiding Judge.
Roberts and her husband were injured when the van she was
driving collided with a pile of dirt and then an excavator at
a Carroll County Water Authority (CCWA) work site. Roberts,
individually and as temporary administrator of her
husband's estate,  filed this personal injury action in the
State Court of Carroll County against CCWA and Henry Junior
Mulkey, a CCWA employee, in his individual capacity. The
trial court granted summary judgment to Mulkey on the basis
of official immunity and CCWA on the basis of sovereign
immunity and dismissed Roberts's complaint with
prejudice. In an alternate holding, the trial court found
that even if Mulkey and CCWA were not immune from suit, they
were entitled to summary judgment on the merits. On appeal,
Roberts contends that the trial court erred (i) in finding
that her claims against Mulkey were barred by official
immunity, (ii) in dismissing her claims against CCWA on the
grounds of sovereign immunity when that issue was not raised
in the motion for summary judgment, and (iii) in finding that
she was sole proximate cause of the collision and subsequent
injuries. For the reasons set forth below, we reverse in part
and vacate in part.
OCGA § 9-11-56 (c),
[s]ummary judgment is warranted if 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 a judgment as a matter of law. We
review the grant or denial of a motion for summary judgment
de novo, and we view the evidence, and the reasonable
inferences drawn therefrom, in a light most favorable to the
(Punctuation and footnotes omitted.) Assaf v. Cincinnati
Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557)
viewed, the evidence shows that on June 29, 2012, crew leader
Mulkey and two other CCWA employees were assigned to fix a
water leak in an underground pipe located on the side of Hog
Liver Road in Carroll County. At the work site, Mulkey parked
an orange mini-excavator, also known as a "track hoe,
" with one track on and one track off of the rural
two-lane road. He then used the track hoe to dig a hole by
the side of the road so the other members of the crew could
access the leaking pipe, and he also dug a service ditch from
the pipe to the water meter. Mulkey placed the excavated dirt
onto the road such that vehicles traveling east on Hog Liver
Road would first encounter the pile of dirt and then the
mini-excavator. The crew took less than an hour to repair the
pipe. During the course of filling the hole back up, Mulkey
realized that no warning signs or traffic cones had been
placed on the road ahead of the dirt pile and track hoe
blocking the lane of travel.
Mulkey and his crew were working, Roberts left her home
around noon and began driving her mini-van east on Hog Liver
Road. Her husband was in the passenger's seat, and the
van's radio was playing. The weather was clear, the road
was dry, and Roberts was driving approximately 35 mph.
According to Roberts, she saw a "blur." Roberts
swerved left, but was unable to avoid the track hoe. Mulkey
testified that he saw Roberts's van hit the dirt pile,
then the track hoe, after which the van turned over on its
side. Roberts and her husband were injured in the collision.
Other than Roberts's vehicle, Mulkey could not recall any
traffic coming through the work site.
Roberts contends that the trial court erred in finding that
her claims against Mulkey were barred by official immunity.
She argues that Mulkey's failure to perform a ministerial
act, specifically placing advance warning signs to alert
motorists at any CCWA work site, is not shielded by official
immunity. "The issue of [Mulkey's] immunity is a
question of law and is reviewed de novo." (Citation
omitted.) Pearce v. Tucker, 299 Ga. 224, 227 (787
S.E.2d 749) (2016).
immunity generally applies "to government officials and
employees sued in their individual capacities."
(Citation and punctuation omitted.) Glass v. Gates,
311 Ga.App. 563, 574 (2) (716 S.E.2d 611) (2011). Under that
doctrine, a public officer or employee "may not be held
liable for his discretionary acts unless such acts are
wilful, wanton, or outside the scope of his authority."
(Citation omitted.) Gilbert v. Richardson, 264 Ga.
744, 752 (6) (452 S.E.2d 476) (1994). However, there is "no
immunity for ministerial acts negligently performed or for
ministerial or discretionary acts performed with malice or an
intent to injure." Id. at 753 (6). Thus,
"[a] public officer or employee may be personally liable
for ministerial acts negligently performed, or for
ministerial acts he or she negligently failed to
perform." (Citations omitted.) Boatright v.
Copeland, 336 Ga.App. 107, 108 (783 S.E.2d 695) (2016).
undisputed that Mulkey did not act with malice or intent to
injure when he failed to place warning signs at the Hog Liver
Road work site; accordingly, at issue is whether the act of
placing warning signs was a ministerial or discretionary act.
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.
(Citation and punctuation omitted.) Common Cause/Georgia
v. City of Atlanta, 279 Ga. 480, 482 (2) (614 S.E.2d
761) (2005). See Pearce v. Tucker, 299 Ga. at 227
(accord). Instructions or procedures sufficient "to
cause an act to become merely ministerial must be so clear,
definite and certain as merely to require the execution of a
relatively simple, specific duty." (Punctuation and
footnote omitted.) Barnard v. Turner County, 306
Ga.App. 235, 238 (1) (701 S.E.2d 859) (2010). "A
ministerial duty may be established by evidence such as a
written policy, an unwritten policy, a
supervisor's specific directive, or a
statute." (Citations omitted; emphasis supplied.)
Roper v. Greenway, 294 Ga. 112, 114-115 (751 S.E.2d
evidence shows that CCWA did not, at the time of June 29,
2012 collision, have a written traffic control policy.
Rather, according to Jared Hopson, a CCWA field
superintendent, the crew leaders knew what signs to put out
at a work zone from "on-the-job" training. On the