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Roberts v. Mulkey

Court of Appeals of Georgia, Third Division

October 31, 2017

ROBERTS et al.
v.
MULKEY et al.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Ellington, Presiding Judge.

         Tracey 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, [1] 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.

         Under 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 nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557) (2014).

         So 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.

         While 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.

         1. 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).

         Official 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).[2] 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).

         It is 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 351) (2013).

         The 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 ...


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