Butler v. Carlisle

• Decision Date: 21 August 2009
• Docket Number: No. A09A1470.,A09A1470.
• Citation: 683 S.E.2d 882,299 Ga. App. 815
• Parties: BUTLER et al. v. CARLISLE et al.
• Court: Georgia Court of Appeals

683 S.E.2d 882

299 Ga. App. 815

BUTLER et al. v. CARLISLE et al.

No. A09A1470.

Court of Appeals of Georgia.

August 21, 2009.

Burnside & Wall, James B. Wall, James W. Ellison, Augusta, for appellants.

Williams, Morris & Blum, Terry E. Williams, Lawrenceville, McClure, Ramsay, Dickerson & Escoe, Larry L. Hicks II, Toccoa, Jason C. Waymire, for appellees.

MIKELL, Judge.

Shirley Haney Butler was walking along Academy Avenue ("Academy") as she was leaving the Mountain Moonshine Festival (the "Festival") in Dawsonville on October 25, 2003, when she was run over by a trailer attached to a truck driven by Gregory Layne Chastain. An antique car sat atop the trailer.¹ Mrs. Butler died as a result of her injuries. Her husband, N. Raymond Butler, filed a wrongful death action against Chastain, the City of Dawsonville (the "City"), and Billy Carlisle, the Sheriff of Dawson County. Butler's claims against the City and the Sheriff are premised in part on their alleged negligent failure to implement proper traffic and pedestrian control measures during the Festival. Butler claims that the City is liable for the Sheriff's allegedly negligent acts as a joint venturer based on an intergovernmental agreement entered into by the Dawson County Sheriff's Department and the City. Each defendant filed a motion for summary judgment, asserting, inter alia, that Butler's claims were barred by the Recreational Property Act, OCGA § 51-3-20 et seq. ("RPA"), and the public duty doctrine. The Sheriff also asserted that all claims against him were barred by sovereign and official immunity. The trial court granted the motions in a one-paragraph order, and Butler appeals. For reasons that follow, we affirm the grant of summary judgment to the Sheriff and reverse the grant of summary judgment to the City.

"On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law."² "In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case."³ Mindful of these principles, we review the facts of record insofar as they are relevant to the dispositive issues.

The record reveals that Academy is a narrow, two-lane street that has no sidewalks. Bridget Anderson, Mrs. Butler's adult daughter, deposed that at the time of the incident, vehicles were parked on both sides of the street, and no law enforcement officers or community volunteers were directing traffic. Anderson was in front of her mother as they walked single-file close to the white line on the right side of the street. When Anderson reached an area of wider pavement, she stopped to turn around and talk to her mother. Anderson heard her mother moan and then saw her "being twisted and turned like a rag doll" under Chastain's trailer. Chastain had come from behind Mrs. Butler, heading west on Academy, and he was pulling an oversized trailer that did not fit between the white lines. Chastain deposed that he was driving away from the Festival on State Route 53 ("Route 53"), and when he reached its intersection with Academy, a volunteer was detouring traffic from Route 53 onto Academy.

The record also shows that the City does not have its own police department or fire department. The Dawson County Sheriff's Department provides law enforcement services for the City pursuant to an intergovernmental agreement entered into by the City, Dawson County, and the Sheriff's Department.⁴ The agreement specifies the services to be performed by the Sheriff's Department, expressly including assistance for the Festival. The agreement obligates the Sheriff to "devote sufficient time and effort" and to supply all "equipment, manpower ... and vehicles required to perform" the specified services.

In August 2003, the Star Bright Foundation submitted to the City an application for a "parade or public or public assembly permit" to hold its annual Festival on October 25 and 26. The application contained a page completed and signed by the Sheriff which listed the route and place of assembly, and recommended the assistance of nine officers and vehicles. On a separate page, the application states that no unusual problems concerning traffic congestion were anticipated because the Foundation had the "cooperation and assistance" of the Sheriff's Department "as well as other volunteers to control all traffic." This portion of the application states that between nine and twelve law enforcement officers would be needed.

The City submitted the application to the Georgia Department of Transportation ("DOT"), as is required when a local government desires to have an event that will impact a state route. Joseph M. Garland, DOT's traffic design engineer, approved the "traffic control plan" contingent on certain conditions, including:

[a]ll detour signing will conform to the Manual on Uniform Traffic Control Devices [MUTCD]; assurance that uniform officers will be stationed at all State Route intersections to assist with traffic control problems and will remain there until this event is concluded; [and] [t]he route will be as indicated in your correspondence.

The letter was sent to the City, but the Sheriff never received a copy of it.

At issue, however, is the "traffic control plan" itself. No plan was attached to the application. According to Garland, a traffic control plan was on file at the DOT from 1992 to 2003, but the plan did not indicate whether Academy was supposed to be one-way or two-way during the Festival. However, Garland reiterated that the DOT contingency required that a uniformed officer be stationed at the intersection of Route 53 and Academy. During discovery, the City produced a diagram of a purported detour map, which has arrows indicating one-way traffic on Academy. The diagram is undated except for the facsimile transmission date of July 2004.

The county fire marshal in 2003, Kenneth Wayne Grosch, testified that he had recommended and approved a plan calling for one-way traffic on Academy. Grosch also opined that on that Saturday, there were two to three times as many people as normally attend the Festival, and they were "terribly shorthanded," and the deputies did not have enough manpower to handle the crowd. Butler alleged in his complaint that the Festival brought approximately 80,000 visitors to the City.

The Sheriff was deposed before he was added as a defendant. In his deposition, the Sheriff testified that he has twenty sworn officers assigned to the patrol division and that he generally devotes seven or eight officers to the Festival. The Sheriff also testified that he was not familiar with the MUTCD and did not know that the DOT required detour signs to conform with it. The Sheriff had not been shown the DOT approval letter containing the three contingencies, although he was aware that the DOT required officers to be stationed at all the state route intersections. When presented with the City's diagram of a purported detour map, the Sheriff testified that it appeared that traffic heading east on Route 53 into the City was rerouted down Academy, and that Academy was supposed to have one-way traffic. In fact, traffic on Academy was permitted to proceed in both directions during the Festival. The Sheriff also testified, however, that he could only assume that the diagram was the "traffic control plan" submitted to the DOT because Butler's counsel showed it to him. The Sheriff subsequently submitted an affidavit in support of his motion for summary judgment, stating that the diagram shown to him at his deposition had not been submitted to him with the Festival application and that he did not know who created it.

Claims Against Sheriff Carlisle

1. The doctrine of sovereign immunity, which the Sheriff has raised as a defense, bars any claims against him in his official capacity. Under the Georgia Constitution, as amended in 1991, "sovereign immunity extends to the state and all of its departments and agencies. The 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."⁵ Sovereign immunity has been extended to counties⁶ and thus protects county employees who are sued in their official capacities, unless sovereign immunity has been waived.⁷ Any waiver of sovereign immunity must be established by the party seeking to benefit from that waiver.⁸

Butler argues that sovereign immunity has been waived by virtue of the intergovernmental agreement, pursuant to which the Sheriff's Department assumed the City's law enforcement duties. Butler argues that the Sheriff and the City may be held jointly and severally liable for the tortious acts of the other under the theory of joint venture.⁹ In support of his argument, Butler cites City of Eatonton v. Few,¹⁰ in which we held that a city was not entitled to judgment as a matter of law on a nuisance claim based on a drowning at its swimming pool because there was evidence that the city shared operating and maintenance costs of the pool with the county and, therefore, was involved in a joint enterprise.¹¹ As noted in Few, the state Constitution specifically authorizes a county and a municipality to enter into joint agreements for the provision of services, or for the joint or separate use of facilities or equipment.¹² In Few, however, the case against the city proceeded under a nuisance theory. "A municipality[,] like any other individual or private corporation[,] may be liable for damages it causes to a third party from the operation or...