Glass v. Gates

• Decision Date: 23 January 2012
• Docket Number: No. A11A1169.,A11A1169.
• Citation: 11 FCDR 2791,311 Ga.App. 563,716 S.E.2d 611
• Parties: GLASS et al.v.GATES et al.
• Court: Georgia Court of Appeals

311 Ga.App. 563

716 S.E.2d 611

11 FCDR 2791

GLASS et al.

v.GATES et al.

No. A11A1169.

Court of Appeals of Georgia.

Sept. 1, 2011.Certiorari Granted Jan. 23, 2012.

Michael Lawson Neff, Atlanta, George Brian Spears, for appellants.Willis, McKenzie, DeGennaro & Alford, Mark Lawrence DeGennaro, La Grange, Freeman, Mathis & Gary, Donald Jeffrey Grate, Joshua Benjamin Portnoy, Wheeler, Hudgins, Gunn & Dial, John Kirk Train IV, Atlanta, for appellees.BARNES, Presiding Judge.

John Glass, an inmate in the custody of Troup County, was killed while operating a tractor on a prison work detail supervised by correctional officer Donrell Gates. The plaintiffs brought this wrongful death and survival action against Troup County and Gates, in his individual and official capacities, alleging that Glass's injury and death were the result of negligence in the supervision of the work detail. The defendants moved for summary judgment, contending that the undisputed evidence showed that the plaintiffs' claims against the County were barred by sovereign immunity and their claims against Gates were barred by official immunity. The trial court granted the defendants' motion.

There are two primary issues in this appeal from the trial court's grant of summary judgment to the defendants. The first issue is whether, in determining if a local government has waived its sovereign immunity through the voluntary purchase of liability insurance under the second sentence of OCGA § 33–24–51(b), courts should look to the definition of “motor vehicle” provided in OCGA § 36–92–1. We conclude that courts should not rely upon that statutory definition, which applies in the more narrow circumstance where the sovereign immunity of a local government is mandatorily waived under the framework provided in Chapter 92 of Title 36. Instead, as our precedent makes clear, “any motor vehicle” as used in OCGA § 33–24–51(a), which is applicable to the waiver of sovereign immunity under the second sentence of OCGA § 33–24–51(b), is defined as a vehicle that is capable of being driven on the public roads that is covered by a liability insurance policy purchased by the local government. Because the trial court applied the wrong definition of “motor vehicle,” we vacate the grant of summary judgment to the County and remand for the trial court to apply the proper definition in determining whether summary judgment is appropriate.

The second issue on appeal is whether there was any evidence that Gates failed to carry out a ministerial rather than a discretionary act. We conclude that there was evidence in the record that Gates failed to carry out a ministerial act, and because the trial court concluded otherwise, we reverse the grant of summary judgment to Gates on the claims brought against him in his individual capacity.

On appeal from the grant of summary judgment, we conduct a de novo review of the record, and we construe the facts and all inferences drawn from them in the light most favorable to the nonmoving party. Ins. Co., etc. of Pa. v. APAC–Southeast, 297 Ga.App. 553, 677 S.E.2d 734 (2009). Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9–11–56(c).

On summary judgment, a trial court is not authorized to resolve disputed issues of material fact. A trial court is authorized only to determine whether disputed issues of material fact remain. If, and only if, no disputed issue of material fact remains is the trial court authorized to grant summary judgment.

(Citation omitted.) Ly v. Jimmy Carter Commons, LLC, 286 Ga. 831, 833(1), 691 S.E.2d 852 (2010). With these principles in mind, we turn to the record in this case.

Viewed in the light most favorable to the plaintiffs, the evidence showed that on November 14, 2007, Glass was incarcerated at the Troup County Correctional Institute, a work camp for state and county prisoners. Glass was classified at a minimum security level and was due to be released from custody within three days.

On the morning in question, a crew of six prisoners from the work camp was cutting grass and picking up trash along a road in Troup County. Members of the crew included Glass and Tony Smith, both of whom were operating county-owned tractors with bush hogs attached to them.

Glass and Smith did have some prior experience operating tractors and bush hogs. However, Troup County had no program in place to train prisoners on the operation of tractors or bush hogs, and there is no evidence that prisoners were ever shown or provided access to the operator's manual for the equipment.

Glass, Smith, and the other prisoners were under the supervision of correctional officer Gates. Although Gates received one week of on-the-job training as a work detail supervisor in early October 2007, Troup County provided no formal training to its work detail supervisors regarding the safe operation of tractors or bush hogs.

While cutting in a ditch against an embankment, Smith's tractor became stuck. According to the plaintiffs, Troup County had an unwritten departmental policy to which Gates was required to comply when a tractor became stuck. Under the policy, if a tractor became stuck in a ditch while cutting grass, the work detail supervisor was to contact the work camp and request that a service truck be dispatched to pull the tractor out.

Upon learning that Smith's tractor was stuck, Gates, who had been observing from inside the county transport van, drove to where Glass and Smith were located. Although a prisoner inside the van asked Gates if he wanted to call or radio back to the work camp for help, Gates instructed that a chain be taken from the back of the van and used by Glass and Smith to free Smith's tractor.¹ With that instruction given, a prisoner grabbed the chain from the van, and Glass and Smith attached it to each of the two tractors. Gates allowed the tractors to be attached so that they faced each other; the plan was for Glass to put his tractor in reverse and pull Smith's tractor out of the ditch. As a result of this positioning, the safety screen on the back of Glass's tractor did not come between Glass and Smith and thus afforded Glass no protection from flying debris.

Once the chain was attached, Gates backed the van several feet away from the two tractors in case rocks were propelled from underneath Smith's tractor. Indeed, departmental guidelines required all work detail laborers to be at least 50 feet behind an operating tractor. As Glass was using his tractor in an effort to free Smith's tractor from the ditch, Smith engaged the bush hog attached to his tractor, causing grass and dirt to fly into the air. ² However, according to a prisoner who was watching from the van, Gates was not supervising or paying attention to Smith or Glass at the time; consequently, Gates made no effort to instruct Smith to turn off his bush hog while being pulled. At that point, a rock flew out from underneath Smith's bush hog and struck Glass in the throat. Glass began to bleed profusely and quickly lost consciousness.

Gates drove up to where Glass was located, exited from the van, and called 911 on his cell phone within a minute of the accident. Gates also called the work camp and reported what had occurred. He told the other prisoners on the work detail that “it was [his] fault” and that “he should have called back to the camp for a truck.” An ambulance arrived and transported Glass to the hospital, but he was pronounced dead later than morning.

At the time of Glass's death, Troup County had a general liability insurance policy and an auto liability insurance policy in place, both of which provided liability coverage of up to $1,000,000 for certain occurrences. The parties dispute whether the policies provide coverage for the tractor and bush hog that Smith was operating.

Glass's minor son and the executor of his estate commenced this wrongful death and survival action against Troup County and Gates, in his individual and official capacities, alleging that Glass's injury and death were the result of negligence in the training of work detail supervisors, negligence in the supervision of work detail prisoners, and the negligent failure of Gates to comply with County policy. The plaintiffs also alleged that Smith's operation of his tractor and bush hog was for the benefit and under the direction of the County, and thus that any negligence by him was attributable to the County as if he were an employee.

The plaintiffs maintained that the County had waived its sovereign immunity under OCGA § 33–24–51 through the purchase of the two liability insurance policies. They further claimed that Gates was not entitled to official immunity because he had failed to follow a specific County policy that imposed a ministerial duty upon him to contact the work camp and wait for the assistance of a truck when a tractor became stuck in a ditch. As a result, the plaintiffs contended that they could recover monetary damages from the County and Gates.

The defendants answered and later moved for summary judgment, contending that the undisputed evidence showed that the plaintiffs' claims against the County were barred by sovereign immunity and that their claims against Gates were barred by official immunity. The trial court granted the motion.

In granting summary judgment to the County, the trial court reasoned that “in determining whether a county [has] waived its sovereign immunity under OCGA § 33–24–51 by purchasing liability insurance to cover personal injury arising out of the use of a motor vehicle, courts must look to the definition of motor vehicle as provided in [OCGA] § 36–92–1.” The trial court then held that any insurance purchased by the County that might cover the tractor or bush hog did not waive the County's sovereign immunity under OCGA § 33–24–51 because neither a tractor nor a bush...