Banks v. Happoldt

• Decision Date: 17 December 2004
• Docket Number: No. A04A2297, No. A04A2298.
• Citation: 271 Ga. App. 146,608 S.E.2d 741
• Parties: BANKS et al. v. HAPPOLDT. Banks et al. v. Happoldt et al.
• Court: Georgia Court of Appeals

608 S.E.2d 741

271 Ga. App. 146

BANKS et al. v. HAPPOLDT.

Banks et al. v. Happoldt et al.

Nos. A04A2297, A04A2298.

Court of Appeals of Georgia.

December 17, 2004.

Jarrard & Davis, Donald Grate, Freeman, for appellants.

Linwood Lovett, Matthew Myers, Lovett, Cowart & Ayerbe, LLC, Paul Ayerbe, Macon, for appellees.

BLACKBURN, Presiding Judge.

James Happoldt in one action and his father and the administrator of his sister's estate in a second action sued various Monroe County officials to recover for injuries Happoldt and his deceased sister received in a car accident allegedly caused by a negligently-maintained road in Monroe County. The county officials appeal the denial of their motion for summary judgment in both actions. We reverse, holding that the county officials were covered by sovereign and official immunity in their alleged actions and were therefore entitled to summary judgment.

This is the second appearance of this case before us. In its first appearance in Happoldt v. Kutscher,¹ we upheld summary judgment granted to a previous defendant (the county subdivision review officer). As we stated in that case,

[i]n reviewing the grant or denial of summary judgment, this court conducts a de novo review of the evidence. As the movant for summary judgment, the county employee had the burden to show there was no genuine issue of material fact for trial and that the undisputed facts, viewed in the light most favorable to the plaintiffs, warranted judgment as a matter of law.

(Citation and punctuation omitted.) Id. at 97, 567 S.E.2d 380.

So construed, the evidence shows that on November 3, 1997, Happoldt was driving a vehicle (with his sister and another person as passengers) on Pate Road in Monroe County. At a certain point, the road pavement, eroded by water and traffic, narrowed to 17 feet 4 inches with an 8-to-11-inch drop-off on the right shoulder. As Happoldt entered this area, his right front tire went off the pavement into the drop-off, causing the vehicle to spin out of control and into the path of an oncoming vehicle. The resulting collision severely injured Happoldt and resulted in his sister's death.

Happoldt sued Sid Banks as the Monroe County road superintendent in his individual and official capacities,² Monroe County's five commissioners in their individual and official capacities, and others who are no longer parties to the suit, for negligent maintenance of the road. His father and his sister's estate administrator filed a similar action against the same defendants. The remaining defendants moved for summary judgment in both actions, claiming they were protected by sovereign and official immunity. The plaintiffs responded that the defendants' acts in failing to maintain the road so that it was at least 20 feet in width were ministerial acts that were unprotected by official immunity. Regarding the official immunity argument, the court found that fact issues existed as to whether defendants' acts were ministerial as opposed to discretionary and therefore denied summary judgment in both actions. The court did not address, nor do plaintiffs on appeal, the sovereign immunity argument. Case No. A04A2297 is the defendants' appeal in the Happoldt action, and Case No. A04A2298 is their appeal in the father/administrator action.

1. Although not addressed by either the trial court below or the plaintiffs on appeal, the doctrine of sovereign immunity (argued by the defendants at every stage) bars these actions insofar as they were brought against the various county officials in their official capacities.

"Sovereign, or governmental, immunity protects governmental bodies from legal action." Standard v. Hobbs.³ "In 1991, the constitutional doctrine of sovereign immunity was amended to extend sovereign immunity to the state and all of its departments and agencies, and this immunity is to prevail except as specifically provided therein. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e)." (Punctuation omitted.) Gilbert v. Richardson.⁴ This sovereign immunity applies to counties, id. at 747(2), 452 S.E.2d 476, and thus protects county employees who are sued in their official capacities. Stone v. Taylor.⁵ See Cameron v. Lang⁶ ("[s]uits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity") (punctuation omitted). In contrast, official immunity (which we address in Division 2 below) offers limited protection to county employees sued in their individual capacities for torts they commit in performing their official functions. Stone, supra at 888(1), 506 S.E.2d 161. See Gilbert, supra at 750(4), 452 S.E.2d 476 ("[w]hile suits against public employees in their personal capacities involve official immunity, suits against public employees in their official capacities ... involve sovereign immunity") (punctuation omitted).

" Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege and the waiver must be established by the party seeking to benefit from the waiver." (Punctuation omitted.) Athens-Clarke County v. Torres.⁷ Here plaintiffs advance no argument nor make any showing that an Act of the General Assembly specifically waived the sovereign immunity protecting these county officials. See Ga. Const.1983, Art. I, Sec. II, Par. IX (e) ("[t]he sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver"). Accordingly, the trial court erred in denying summary judgment as to all claims against the defendants in their official capacities. See Kordares v. Gwinnett County.⁸

2. We hold that the trial court also erred in denying summary judgment as to those claims against the defendants in their individual capacities.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee's independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Punctuation and footnotes omitted.) Cameron, supra at 123(1), 549 S.E.2d 341. See Ga. Const.1983, Art. I, Sec. II, Par. IX (d). Thus, "[d]amage suits are maintainable in this state against government officers and agents for failure to perform ministerial duties, but such officers and employees are immune from negligence claims when the acts complained of involve a discretionary function of an office." (Punctuation omitted.) Stone, supra at 888(2), 506 S.E.2d 161, quoting Nelson v. Spalding County.⁹

Because plaintiffs here do not allege that the county officials acted with malice or with an actual intent to cause injury, the county officials are immune from liability if their alleged negligence involved discretionary as opposed to ministerial acts. In the first appeal of this case, we set forth the distinction between these two types of acts:

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 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. Procedures or instructions adequate 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 footnotes omitted.) Happoldt, supra at 98(1), 567 S.E.2d 380.¹⁰

"Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case." Woodard v. Laurens County.¹¹ We look to "the character of the specific actions complained of." (Punctuation omitted.) Larkins v. Cobb County School Dist.¹² See Wanless v. Tatum¹³ (examine specific allegations).

Here the plaintiffs claim that Banks as road superintendent and the other defendants as commissioners who generally oversaw Banks' work "were all negligent in allowing the road to remain at a width of less than 20 feet." They cite to certain "Minimum Acceptable Road Standards," which the county commissioners adopted in the 1970s and which required a "[m]inimum road surface width of 20 [feet]." They presented evidence below that in addition to other citizen complaints, 16 months prior to the accident the county commissioners and Banks had received a written citizen complaint that Pate Road dangerously narrowed in the relevant area with a severe drop-off on the shoulder. Plaintiffs claim that Banks had a ministerial duty to repair the road to meet the minimum 20-foot standard, that the county commissioners had a ministerial duty to ensure that Banks did such, and that the defendants' joint failure to perform these ministerial duties rendered them personally liable for negligent acts in the performance of their official functions.

Plaintiffs' arguments fail for at least two reasons. First, the "Minimum Standards" do not apply to Pate Road. Pate Road existed as a county road long before the enactment of the "Minimum Standards." Despite the lay opinion of two county commissioners that the "Minimum Standards" applied to all county roads, the standards do not provide that previously existing...