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Ortega v. Coffey

Court of Appeals of Georgia, First Division

February 26, 2019

ORTEGA et al.
v.
COFFEY et al.

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          BARNES, PRESIDING JUDGE.

         Following the death of her husband and injury of her minor son in a vehicle accident, Mary Ortega, as surviving spouse and administrator of the estate of Armando Ortega and the parent and guardian of Armando Ortega, Jr., filed a complaint for damages against Okefenokee Emergency Medical Services, Inc., d/b/a Atkinson County Emergency Medical Service ("Okefenokee EMS"), Atkinson County, [1] and David Coffey, the Atkinson County Road Superintendent, in his individual capacity. Ortega claimed that Okefenokee EMS had failed to properly and timely address the injuries to her husband and son, and that Coffey had failed to inspect and maintain the roadway which caused her husband's death and son's injuries. Okefenokee EMS and Coffey filed motions for summary judgment, which the trial court granted upon concluding that both defendants were immune from liability. Ortega appeals from those orders and contends that Coffey was not entitled to official immunity because he was negligent in the performance of his ministerial duties. She also contends that Okefenokee EMS was not entitled to statutory immunity because her claims were brought for its failure to render emergency services rather than for its rendition of emergency services, and because any services that were rendered were for remuneration. Upon our review, we affirm the trial court's grant of summary judgment to Coffey, but reverse the grant of summary judgment to Okefenokee EMS.

         1. We first note that Ortega's brief fails to comply with our rules in that significant portions of the factual premises in her appellate brief are not supported by the record other than to an all-inclusive 100-page record citation, specifically "R: 57-162." She cites critical facts, including quotes from various deposition testimony, but rather than provide specific citations to the record, she either broadly cites "R: 57-162" or "Id." This Court is not charged with culling the record on behalf of a party. Hicks v. State, 337 Ga.App. 567, 569 (1) (788 S.E.2d 502) (2016). See Court of Appeals Rule 25 (c) (2). Thus, "[i[f we have omitted any fact or failed to locate relevant evidence, the responsibility lies with counsel." In the Interest of C. T., 286 Ga. App, 186, 186 (1) (648 S.E.2d 708) (2007).

2. As to Ortega's substantive claims,
[s]ummary judgment is proper 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. Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Claxton, 345 Ga.App. 539, 539 (812 S.E.2d 167) (2018). See OCGA § 9-11-56 (c).

         So viewed, the evidence demonstrates that on February 22, 2015, Ortega's husband was driving his Dodge Ram truck on Harvey Newbern Road in Atkinson County. Ortega's twelve-year-old son was also in the truck. As the two traveled down Newbern Road, the husband hit a hole in the road, and "almost lost control" of his truck, but he was able to regain control of the truck until he hit a second hole in the road and "lost control and . . . hit [a] tree." The police were already on the scene when Okefenokee EMS responded to the accident, and the fire department was either on the scene or arrived shortly thereafter. One of the emergency medical technicians ("EMT") approached the seriously injured husband who was trapped on the driver's side of the truck, and another attended to the son who was seated on the passenger side. According to the son, an EMT asked him whether he was okay, and the son asked the EMT to check on his unconscious father but the EMT responded that "we've got to get you out first." The son testified that an EMT then instructed him to "jump off the truck," and when the son said that he could not jump because his leg was injured, he was told that "that's how you're going to have to get off." When the son jumped, he heard a pop and it "really, really hurt," but he "had to walk" to the stretcher. The son also testified that the EMTs did not immediately attend to his father and that they should have "went ahead and worked on him." The son was aware that the father was trapped but testified that the EMTs could have "work[ed] on the trapped door [when] [he] told them [he] was okay." The father, who was unresponsive but breathing, was removed from the truck and placed in the ambulance with the son. The husband stopped breathing while he was in the ambulance, and the EMTs attempted to resuscitate the husband during the trip to the hospital, but he died of his injuries.

         The EMT who assisted the son was deposed and testified that he removed the son from the truck with the assistance of other first responders. He testified that the son "was picked up and brought out of the truck . . . and laid onto a spineboard, at which time we put the C-collar [on him] . . . and put the head blocks . . . on him . . . and then we carried him around to the ambulance." The EMT who assisted the husband testified that when he arrived at the accident scene, the father was trapped, breathing but unresponsive. He testified that despite the husband being trapped he was able to climb into the vehicle from the passenger side and place the husband on oxygen.

         (a) Grant of Summary Judgment to Appellee Coffey.

         In granting summary judgment to Coffey, the trial court found that Ortega failed to establish that Coffey had a ministerial duty to maintain the roads and had breached that duty. The trial court further found that any duty Coffey had to maintain or repair the road was discretionary and that Ortega thus had to demonstrate that Coffey acted with actual malice in the performance of his duty, and had not done so. After so finding, the trial court concluded that "because there is no evidence that Coffey negligently performed a ministerial act or acted with actual malice, he is entitled to official immunity and summary judgment is appropriate." We agree.

         "[A] suit against a public official in his or her individual capacity is barred by official immunity where the public official has engaged in discretionary acts that are within the scope of his or her authority, and the official has not acted in a wilful or wanton manner; with actual malice; or with the actual intent to cause injury." Brown v. Penland Constr. Co., 281 Ga. 625, 625-626 (641 S.E.2d 522) (2007). See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). However, the Georgia Constitution "provides no immunity for ministerial acts negligently performed." Gilbert v. Richardson, 264 Ga. 744, 753 (6) (452 S.E.2d 476) (1994). "The issue of [Coffey's] immunity is a question of law[.]"Pearce v. Tucker, 299 Ga. 224, 227 (787 S.E.2d 749) (2016).

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/Ga v. City of Atlanta, 279 Ga. 480, 482 (2) (614 S.E.2d 761) (2005). 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 ...


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