Vann v. Finley

• Citation: 11 FCDR 3939,313 Ga.App. 153,721 S.E.2d 156
• Decision Date: 01 December 2011
• Docket Number: No. A11A1323.,A11A1323.
• Parties: VANN v. FINLEY et al.
• Court: United States Court of Appeals (Georgia)

11 FCDR 3939

313 Ga.App. 153

721 S.E.2d 156

VANN

v.FINLEY et al.

No. A11A1323.

Court of Appeals of Georgia.

Dec. 1, 2011.

Shepard, Plunkett, Hamilton & Boudreaux, Daniel Whitener Hamilton, Augusta, for appellant.

Joseph Raymond Neal, Jr., Stanley C. House, Augusta, Douglas Merlin Nelson, Christopher James Hudson, Martinez, Charles Madden Cork III, for appellees.

BLACKWELL, Judge.

After Michelle Borror and Ryan Holt died in an electrical fire at their mobile home in Richmond County, their parents sued Lewis Vann, an electrical inspector with the Augusta License Inspection Department, for wrongful death. ¹ The Department assigned Vann to inspect the home before Georgia Power connected electricity to it, and the parents allege that Vann negligently failed to inspect the home at all or, at the least, to inspect it properly, and they assert that his negligence is a proximate cause of the deaths of their children. After discovery was complete, Vann moved for summary judgment, but the court below denied his motion. Vann now appeals from the denial of summary judgment,² contending that he has immunity with respect to his duty to inspect the home and, in any event, that there is no evidence from which a jury properly might find that his negligence, if any, is a proximate cause of the deaths.³ Upon our review of the record, we see no error in the denial of summary judgment, and we affirm the judgment below.

The standard for summary judgment is settled and familiar. Summary judgment is warranted when one or more material facts are undisputed, as shown by the pleadings and the evidence of record, and these facts entitle one party to judgment as a matter of law. Strength v. Lovett, 311 Ga.App. 35, 39(2), 714 S.E.2d 723 (2011). If the record shows that the plaintiff cannot possibly prove an essential element of his case for which he would bear the burden of proof at trial, see Cowart v. Widener, 287 Ga. 622, 623(1), 697 S.E.2d 779 (2010), or if it shows that the defendant has proved conclusively an affirmative defense to the claims of the plaintiff, see Weston v. Dun Transp. & Stringer, Inc., 304 Ga.App. 84, 85, 695 S.E.2d 279 (2010), the defendant is entitled to summary judgment. When a defendant moves for summary judgment based on the inability of the plaintiff to prove an element of his case, the defendant need only point “to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element,” and if the defendant does so, the plaintiff “cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.” Strength, 311 Ga.App. at 39(2), 714 S.E.2d 723 (citations and punctuation omitted). When a defendant, however, moves for summary judgment based on an affirmative defense, the defendant must come forward with evidence sufficient to prove each element of his defense, and he is entitled to summary judgment only if he does so, and only if the plaintiff then fails to come forward with any evidence to dispute one or more elements of the defense. See Weston, 304 Ga.App. at 85, 695 S.E.2d 279. We review the denial of a motion for summary judgment de novo, viewing the evidence in the record, as well as any inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party. Strength, 311 Ga.App. at 36, 714 S.E.2d 723.

So viewed, the record in this case shows that Holt leased a mobile home in July 2006 for himself and Borror, and Georgia Power was asked to connect electrical power to the home. Because it had been vacant for more than 180 days, however, a reconnect inspection ⁴ was required before electrical power could be connected, and Georgia Power advised that someone should contact the Augusta License Inspection Department to schedule an inspection. The Department was contacted, and it assigned Vann to conduct the inspection. ⁵

According to Vann, he made arrangements to inspect the mobile home on the morning of August 1, and so that he could enter the home as a part of the inspection, he arranged for one of its residents to meet him on that day. Vann went to the home at the appointed time, he said, but neither Borror nor Holt appeared. After waiting “quite a long time,” Vann proceeded to inspect the electrical pole at the mobile home, the electrical meter, the service panel underneath the meter, and the yard surrounding the home. According to Vann, nothing about the pole, meter, service panel, or yard suggested that it might be unsafe to connect electrical power to the mobile home, and he saw no signs of blight. Vann then hung a door tag on the front door of the home, which advised the residents that an inspector had come to the home for an inspection and that they should contact the Department to schedule “an appointment” with the inspector. Vann wrote his phone number on the tag. Later that afternoon, Vann testified, an unidentified “young woman” called him about the tag, and he told her that her home needed smoke detectors, to which she responded that smoke detectors either had been installed or soon would be. After speaking with this woman, Vann signed an electrical release form, and based on this form, the Department notified Georgia Power that it could connect electrical power to the home.

Although Vann maintains that he actually visited and inspected the exterior of Borror and Holt's home on August 1, there is some evidence that he did not. Vann admitted at his deposition, for instance, that he did not notice damage to the container that enclosed the electrical meter during his inspection of the meter, notwithstanding that other evidence in the record shows that the damage was obvious.⁶ Vann also admitted that he did not see a lock that had been placed on the container, even though another witness said that the lock was so large and obvious that it could be seen from a distance of 30 to 40 feet. When Vann completed his paperwork following the inspection, he described the home as a “blue trailer,” although other evidence shows that the mobile home was white. Vann also failed to notice a “junked car” in the side yard of the mobile home, as well as several obviously abandoned and rotting trailers on the property surrounding the mobile home, all of which was visible from the yard.⁷ In addition, two witnesses, both of whom were near Borror and Holt's home on the morning of August 1,⁸ testified that they never saw any inspectors at the home on that day. There is conflicting evidence, therefore, about whether Vann conducted any inspection of the mobile home before the Department authorized Georgia Power to connect electrical power. The evidence is undisputed, however, that Vann never entered the home to inspect its interior. In any event, Georgia Power connected electrical power to the home a few days later.⁹

Then, in the early morning hours of August 22, tragedy struck. An electrical fire erupted in the kitchen of the mobile home, smoke filled the home, and Borror and Holt died of smoke inhalation, failing to escape before succumbing to the smoke.¹⁰ There is conflicting evidence about whether a smoke detector was installed in the home at the time of the fire. An owner of the mobile home testified that a smoke detector had been installed, and he claimed that he found a partially burned smoke detector at the scene of the fire, albeit several years after the fire occurred. But an investigator for the Augusta–Richmond County Fire Department and two other fire investigators searched the fire scene within days of the fire, and they testified that they found no smoke detector and no evidence that one had been installed. One investigator offered his opinion, based on his investigation of the fire scene, that no smoke detector had been installed. Moreover, there is evidence in the record that this fire generated significant smoke, that a smoke detector would have sounded within a minute of detecting such smoke, and that properly functioning smoke detectors “more often than not” successfully wake sleeping residents, and in light of this evidence, the fact that Borror and Holt failed to escape the fire is, we think, additional proof that no smoke detector had been installed.

In March 2007, Borror and Holt's parents filed this lawsuit, alleging that Vann negligently failed either to inspect the home at all or to properly inspect it before the Department authorized Georgia Power to connect electrical power. If Vann had properly inspected the home, the parents contend, he would have seen that no smoke detector had been installed, and he would have insisted upon the installation of a smoke detector before electrical power was connected. And if that had happened, the parents assert, Borror and Holt likely would have escaped the fire with their lives.

1. We first consider the contention that Vann has immunity for his inspection of the mobile home. The doctrine of official immunity “offers public officers and employees limited protection from suit in their personal capacity,” Cameron v. Lang, 274 Ga. 122, 123(1), 549 S.E.2d 341 (2001), and it requires the courts, when a public officer or employee is sued individually, to distinguish between his ministerial and discretionary duties.¹¹ The doctrine permits a public officer or employee to be sued individually for the negligent performance of his ministerial duties, but he can be sued individually for the performance of his discretionary duties only if he acts wilfully, wantonly, or beyond the scope of his authority. Gilbert v. Richardson, 264 Ga. 744, 752(6), 452 S.E.2d 476 (1994). Our Supreme Court has explained the distinction between ministerial and discretionary duties:

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...