Bray v. Houston County

• Citation: 348 S.E.2d 709,180 Ga.App. 166
• Decision Date: 02 September 1986
• Docket Number: No. 72631,72631
• Parties: BRAY v. HOUSTON COUNTY.
• Court: United States Court of Appeals (Georgia)

Page 709

348 S.E.2d 709

180 Ga.App. 166

BRAY v. HOUSTON COUNTY.

No. 72631.

Court of Appeals of Georgia.

Sept. 2, 1986.

T. Henry Clarke IV, Atlanta, for appellant.

Cubbedge Snow III, Macon, for appellee.

POPE, Judge.

James E. Bray, Jr., filed suit against Houston County seeking judgment for damage and loss of use of his vehicle occurring while he was serving as a volunteer member of the Houston County Emergency Management Team, which was assisting the sheriff's office in a nighttime search for a weapon involved in a crime. The complaint alleged that Bray's timely demand for settlement had been denied by the County Board of Commissioners, and that as a proximate result of the tortious acts of the county officers which amounted to the taking of or damage to private property directly for public use without just and adequate compensation being first paid in violation of the law of this state, he was entitled to compensatory damages and other just relief. The county answered, denying all the allegations and asserting that any action for negligence against it was barred by OCGA § 36-1-4; that if there were any "taking" of Bray's property, which was expressly denied, such taking was not for public use but was under the exercise of the police power for which the owner was entitled to no compensation; and that any injuries or damages suffered by Bray were the sole result of the negligence of a third party, so that he was not entitled to recover from the county in any amount.

Following discovery proceedings, the county filed a motion for summary judgment supported by an affidavit of the deputy director of the Houston County Emergency Management Team, stating that he had assembled volunteers to assist in the search for the lost weapon, one of whom was Bray; that in order to effectuate the search a generator was placed on the back of his pickup truck from which spotlights were run to the various volunteers who would form a line and fan out to search for the weapon on the side of the road; that Bray "arrived in his own personal vehicle, a Jeep of some sort, and requested that we place the generator on his vehicle as he felt it could get to certain areas along the roadway better than my truck"; that he told Bray "that if we ran into a problem that we would do that, but right now he should join the other volunteers"; that Bray parked his vehicle further down the road and left it with a flashing light on it; and that sometime after this another car ran into the rear of Bray's jeep.

In opposition to the motion for summary judgment Bray filed his own affidavit in which he averred that when he arrived at the search area "someone suggested using the lights on my jeep to aid in the search. A generator arrived about one hour later. During this time, different members were moving my jeep down Highway 247 so we could see by the lights located on my jeep. My jeep was hit from the rear by another vehicle shortly after the generator arrived. No one at any time asked or suggested to me that I move the jeep from its location on Highway 247. In fact, the search was started approximately one hour earlier due to the fact that my jeep was used." Bray filed a second affidavit in which he further swore that other than the flashing beacon on top of his vehicle and its emergency flashers, "there were no other cautionary devices other than flashing lights to warn of the people or the jeep which was in the road." After considering briefs and arguments presented by the parties, the trial court granted the county's motion...