Driskell v. Dougherty Cnty.
| Decision Date | 16 March 2022 |
| Docket Number | A21A1279, A21A1280 |
| Citation | 871 S.E.2d 283 |
| Parties | DRISKELL v. DOUGHERTY COUNTY et al. City of Albany v. Dougherty County. |
| Court | Georgia Court of Appeals |
Charles Madden Cork III, Jon-Selby Reynolds Hawk, for Appellant in A21A1279.
Jason David Lewis, Macon, Jessica Brooke Haygood, Sun S. Choy, Atlanta, Jacob Edward Daly, Atlanta, for Appellee in A21A1279.
Sun S. Choy, Atlanta, Jacob Edward Daly, Atlanta, for Appellantin A21A1280.
Jason David Lewis, Macon, Jessica Brooke Haygood, for Appelleein A21A1280.
In this tort action, Daryl Driskell sued the City of Albany, Dougherty County, and City code enforcement officer Melinda Gray for damages after Gray struck Driskell's vehicle. In Case No. A21A1279, Driskell appeals from the trial court's order granting summary judgment to the County and denying his cross-motion for partial summary judgment, arguing that the County is liable for Gray's conduct based upon a variety of legal theories, including that the County is engaged in a joint enterprise with the City. In Case No. A21A1280, the City appeals from the trial court's order denying its motion for summary judgment, asserting that: (1) an exculpatory clause in the intergovernmental agreement between the City and the County is not an indemnity provision; and (2) the City's potential indemnity liability should be capped at $500,000.1 We have consolidated these cases for decision on appeal and, for the following reasons, we conclude that mutual control is an essential element of a joint venture claim against contracting governmental entities, and we disapprove some of our prior authorities that state the contrary. We further conclude that the trial court correctly determined that the record does not contain any evidence of mutual control, an essential element of a joint venture claim. Therefore, we affirm the trial court's judgment in Case No. A21A12792 and dismiss the City's appeal in Case No. A21A1280 as moot.
Viewed in a light most favorable to the non-movants,3 the record reveals that the City and the County executed an intergovernmental agreement in 2014 "for the City to furnish [c]ode [e]nforcement [s]ervices within the confines of the unincorporated area of [the] County[.]"4 As part of the agreement, the City was to employ an individual who would be dedicated to providing County code enforcement services, and Gray was so employed. In April 2017, Driskell filed suit against the City, the County, and Gray, seeking damages stemming from a 2015 accident in which Gray struck Driskell's vehicle from behind.
The County moved for summary judgment, denying liability for the accident involving a City employee. In opposing the County's motion and moving for partial summary judgment, Driskell contended, inter alia, that the County had entered into an agreement with the City for the "joint" provision of code enforcement services and was therefore engaged in a joint enterprise with the City which could impose liability on the County for Gray's actions. Following a hearing, the trial court granted the County's motion for summary judgment and denied Driskell's cross-motion for partial summary judgment. In addition, the trial court denied the City's motion for summary judgment in which the City asserted that an indemnity provision in the parties’ intergovernmental agreement was actually a limitation-of-liability clause and that its indemnity liability, if any, should be capped at $500,000. These appeals followed.
1. Driskell first asserts that the trial court erred in granting the County's motion for summary judgment because the City and the County were engaged in a joint enterprise pursuant to their intergovernmental agreement and, therefore, the County could be jointly liable. We do not agree.
(a) Generally, Georgia law provides that "the theory of joint venturers arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control (provided the arrangement does not establish a partnership), so as to render all joint venturers liable for the negligence of the other." Kissun v. Humana, Inc. , 267 Ga. 419, 420, 479 S.E.2d 751 (1997). "Without the element of mutual control, no joint venture can exist. " (Emphasis supplied.) Rossi v. Oxley , 269 Ga. 82, 83 (1), 495 S.E.2d 39 (1998). "For a joint venture to exist, there must be not only a joint interest in the purpose of the enterprise but also an equal right, express or implied, to direct and control the conduct of one another in the activity causing the injury...." (Citation and punctuation omitted.) Williams v. Chick-fil-A, Inc. , 274 Ga. App. 169, 170, 617 S.E.2d 153 (2005). Importantly, "[t]he mere existence of a business interdependency does not create a joint venture." (Citation and punctuation omitted.) Lafontaine v. Alexander , 343 Ga. App. 672, 680 (6), 808 S.E.2d 50 (2017).
It is likewise true that the Georgia Constitution provides that government entities "may contract ... with each other ... for joint services, for the provision of services, or for the joint or separate use of facilities or equipment[.]" Ga. Const. of 1983, Art. IX, Sec. III, Par. I (a); see also Lafontaine , 343 Ga. App. at 681 (6), 808 S.E.2d 50. However, no express provision of the Intergovernmental Contracts Clause of our Constitution negates the general requirement for mutual control in joint ventures between contracting government entities. See Ga. Const. of 1983, Art. IX, Sec. III, Par. I (a). Nor does there appear to be any authority from the Supreme Court of Georgia authorizing such a departure. What is left, then, is that there must be proof of mutual control to support a joint venture claim. See Kissun , 267 Ga. at 420, 479 S.E.2d 751.
In reaching its conclusion, the trial court factually distinguished two cases Driskell cited for the proposition that the element of mutual control does not apply to government entities — DeKalb County v. Lenowitz , 218 Ga. App. 884, 887 (1), 463 S.E.2d 539 (1995) and City of Eatonton v. Few , 189 Ga. App. 687, 690 (2), 377 S.E.2d 504 (1988) — because both cases involved ongoing nuisances. However, a close reading of our case law finds no support for the proposition that mutual control is not an essential element to establishing joint venture liability among government entities.
(b) This proposition appears to have its genesis in Few , in which our Court stated that "it is clear that a ‘joint enterprise’ may nevertheless be found to exist even though a profit motive and mutual control are otherwise lacking."5 (Emphasis supplied.) 189 Ga. App. at 690 (2), 377 S.E.2d 504. In support of this statement, Few cited Seckinger & Co. v. Foreman , 252 Ga. 540, 541 (1), 314 S.E.2d 891 (1984). In Seckinger , our Supreme Court determined that "one partner in a joint venture may be liable for the worker's compensation benefits of the other joint venturer's employees." Id. at 541 (2), 314 S.E.2d 891.
However, Seckinger does not stand for the proposition that mutual control is not required to show a joint venture between government entities, as it simply determined that the agreement at issue "was denominated a joint venture agreement and provided that it should be construed and deemed to be a joint venture" without any further analysis or discussion. Id. at 541 (1), 314 S.E.2d 891. Moreover, despite Few ’s statement to the contrary, Seckinger did not consider whether the mutual control element of a joint venture was satisfied. Id. In fact, there is no mention of mutual control in Seckinger at all. Rather, Seckinger simply found that an agreement constituted a joint venture because the parties designated the agreement as a joint venture — or, stated succinctly, the agreement was a joint venture because the parties called it a joint venture. Importantly, Seckinger is a worker's compensation case that specifically noted that its result of holding one company liable for the benefits of a different company's employee was motivated by the beneficent purpose of the worker's compensation system — a then-prevailing purpose that has no equivalent in joint ventures.6 Id. at 541 (2), 314 S.E.2d 891. Accordingly, Seckinger does not stand for a broad exception, applicable to government entities, to the requirement to show mutual control to support a joint venture claim, and Few was incorrect to rely on it to create such an exception.7
In the almost 40 years since it was decided, Few ’s progeny have relied upon Few without any additional analysis or discussion and have incorrectly characterized contracts between government entities as an exception to the general rule that mutual control is required to demonstrate a joint venture. See Ga. Dept. of Transp. v . Delor , 351 Ga. App. 414, 423 (6), 830 S.E.2d 519 (2019) ; Lafontaine , 343 Ga. App. at 681 (6), 808 S.E.2d 50 ; Lenowitz , 218 Ga. App. at 887 (1), 463 S.E.2d 539. For example, Lenowitz involved an intergovernmental agreement between the City of Atlanta and DeKalb County to provide sewer services in unincorporated DeKalb County. 218 Ga. App. at 885, 463 S.E.2d 539. When the sewer system leaked onto a...
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