Grant v. Ga. Forestry Comm'n

• Decision Date: 14 July 2016
• Docket Number: A16A0225,A16A0224
• Citation: 789 S.E.2d 343,338 Ga.App. 146
• Parties: Grant et al. v. Georgia Forestry Commission et al. Grant et al. v. Georgia Forestry Commission et al.
• Court: Georgia Court of Appeals

338 Ga.App. 146

789 S.E.2d 343

Grant et al.

v.Georgia Forestry Commission et al.

Grant et al.

v.Georgia Forestry Commission et al.

A16A0224

A16A0225

Court of Appeals of Georgia.

July 14, 2016

Billy N. Jones, Carl Robert Varnedoe, Hinesville, for Appellant.

Robert Lee Bunner, Atlanta, Joseph Henry Cowart, for Appellee.

McMillian

, Judge.

In these related cases, Carol Grant¹ (“Grant”) brought wrongful death actions against the Georgia Forestry Commission (“GFC”) and the Georgia Department of Transportation (“GDOT”) arising out of an automobile collision that resulted in the death of Grant's husband, Myles N. Grant, and her son, Joell D. Grant. Grant appeals the trial court's dismissal of GFC and GDOT on the grounds that the doctrine of sovereign immunity bars her claims.

The facts are largely undisputed. At approximately 5:30 a.m. or 5:50 a.m.,² on March 17, 2011, Grant's husband and son were killed in an automobile accident on Interstate 16 (“I–16”) when they collided with a tractor-trailer (the “Accident”). At the time, there was little to no visibility on the interstate due to a combination of smoke and fog.

On the day before the Accident, GFC had issued an online burn permit to Grantley Stewart to burn vegetation on his property in Bulloch County, Georgia. At approximately 3:30 p.m. that day, Douglas Chassereau, Chief Ranger for the Bulloch County GFC fire protection unit, received notice of a fire on Stewart's property, and when he arrived at the property approximately 45 minutes later, he observed a fire burning out of control in an area of forested land and threatening to burn a number of structures. Because forest fires fall within GFC's jurisdiction, Chassereau “took charge” of the fire scene, and he “continuously monitored the fire and assigned manpower and equipment to contain the fire.” As a part of his duties, Chassereau drove State Route (“SR”) 67, located several hundred feet north of the fire, where he observed that Bulloch County Sheriff deputies were handling traffic issues and that smoke/fog warning signs for both travel lanes on SR 67 had been posted.

At around 7:00 p.m. that evening, Chassereau determined that the fire appeared to be contained; however, the burned area, which consisted of around 45 acres, continued to smoke. Chassereau observed that the smoke was drifting in a southeasterly direction, away from I–16, which was further to the north of the burned area, and he observed no visibility issues on either SR 67 or I–16. The closest edge of the burned area was approximately ¾ of a mile from the interstate. However, before Chassereau left the vicinity at around 8:00 p.m., he called Bulloch County 911 to provide notice that smoke was in the area and directed the dispatcher to request that the Georgia State Patrol (“GSP”) and the Bulloch County Sheriff's Office continue to monitor the area for possible problems.

GDOT also received notice of the fire on March 16 when the Bulloch County Sheriff's Office called to request that smoke warning signs be posted on SR 67. Joseph Mixon, GDOT's maintenance foreman for Bulloch County, responded to the scene between 4:30 and 5:00 p.m. At the time, GDOT Policy 6670–3 (the “GDOT Policy”) required Mixon in his capacity as maintenance foreman to respond to requests from local law enforcement to place fog/smoke warning signs on state roads. Although Mixon observed no existing visibility issues, he complied with the request of the sheriff's office to place warning signs in both directions on the roadway at around 5:00 p.m. When Mixon returned to the scene at around 7:45 p.m. to check the visibility, he found the conditions clear. After calling the sheriff's office regarding the signs, Mixon left the signs in place overnight at their request.

The next morning, March 17, Chassereau left his house at 5:30 a.m. to return to the burned area and on the way, at around 6:09 a.m., he received a report of the Accident. When he arrived at the scene a few minutes later, he observed that the area was enveloped in dense fog and smoke, resulting “in near zero visibility,” although he had no trouble breathing in the fog, indicating that it did not contain enough smoke to compromise his breathing or to cause him to experience other smoke-related symptoms.

Also, around 5:30 a.m. on March 17, Mixon received a call from GDOT's Transportation Management Center (“TMC”) indicating that law enforcement had asked that warning signs be placed on I–16. That was the first notice he received of visibility issues on I–16. A few minutes later, TMC called him to report that I–16 had been closed due to the Accident and that law enforcement was asking for assistance in setting up a detour for the eastbound lane of the interstate. Mixon notified his immediate supervisor of these events. They then coordinated notifying additional GDOT personnel to pick up the necessary signage and to bring it to the appropriate interchange on I–16. When Mixon arrived at the interstate that morning, he observed that “fog and smoke had accumulated to such a degree over I–16 that [he] could not see through [his] windshield beyond the front hood of [his] truck.”

After the extended discovery period had ended, GDOT and GFC filed motions to dismiss Grant's claims pursuant to

OCGA § 9–11–12 (b) (1)

, asserting that they were entitled to the protection of sovereign immunity, which the trial court granted after a hearing, and these appeals followed.

1. On appeal, Grant asserts that the trial court erred in granting the motions to dismiss because sovereign immunity had been waived under the Georgia Tort Claims Act (“GTCA”), OCGA § 50–21–20 et seq.

, as to her claims against GFC and GDOT. The Georgia Constitution provides that sovereign immunity extends to the State and all of its department and agencies and that such immunity can only be waived by a constitutional provision or an Act of the General Assembly, “which specifically provides that sovereign immunity is waived and the extent of such waiver.” Ga. Const. of 1983, Art. I, Sec. II, Par IX (e). The GTCA provides for a limited waiver of sovereign immunity for “the torts of state officers and employees while acting within the scope of their official duties or employment,” subject to a number of exceptions and limitations, OCGA § 50–21–23 (a), which are set out in OCGA § 50–21–24. At issue in this appeal are the exceptions set forth in OCGA § 50–21–24 (2) and (6).

In reviewing an assertion of sovereign immunity, we must keep in mind that sovereign immunity is not an affirmative defense but instead raises an issue as to the trial court's jurisdiction to try the case. Dept. of Transp. v. Dupree , 256 Ga.App. 668, 671, 570 S.E.2d 1 (2002)

. The burden of establishing a waiver of such immunity falls to “the party seeking to benefit from that waiver.” (Citation and punctuation omitted.) Id. Therefore, in response to GDOT's and GFC's motions to dismiss, Grant bore the burden of establishing a waiver of sovereign immunity as to her claims against each of the two state agencies. Id.

Moreover, where a motion to dismiss asserting the protection of sovereign immunity is filed pursuant to OCGA § 9–11–12 (b) (1)

, as it was here, the trial court is entitled to hear evidence and make relevant factual findings in deciding the issue of immunity. Rivera v. Washington , 298 Ga. 770, 784 S.E.2d 775 (2016) ; Dupree , 256 Ga.App. at 675 (1) (b), 570 S.E.2d 1 ; OCGA § 9–11–12 (d). This Court sustains the trial court's factual findings if there is any evidence to support them. Ga. Dept. of Transp. v. Wyche , 332 Ga.App. 596, 597, 774 S.E.2d 169 (2015). But where the underlying facts are undisputed, we review de novo the trial court's application of the law to the undisputed facts. See generally id. ; McCombs v. Southern Regional Med. Ctr ., 233 Ga.App. 676, 681, 504 S.E.2d 747 (1998).

2. We turn first to Grant's claims against GFC. In her complaints, Grant asserted that GFC was negligent in (1) failing to notify other governmental agencies of the potentially hazardous conditions caused by the fire; and (2) failing to coordinate with GDOT to put signs in place to warn the public of these potentially hazardous conditions. In support of its motions to dismiss, the GFC argued that it was entitled to sovereign immunity because its actions fell within the exception to the waiver of sovereign immunity set out in OCGA § 50–21–24 (6)

, and the trial court agreed, finding that GFC was entitled to immunity.³

OCGA § 50–21–24 (6)

absolves the State from liability for losses resulting from “[c]ivil disturbance, riot, insurrection, or rebellion or the failure to provide, or the method of providing, law enforcement, police, or fire protection.” Our Supreme Court has interpreted this provision

as authorizing the application of sovereign immunity to the making of policy decisions by state employees and officers including those relating to the amount, disbursement, and use of equipment and personnel to provide law enforcement, police or fire protection services, and to the acts and omissions of state employees and officers executing and implementing those policies.

Ga. Forestry Comm. v. Canady , 280 Ga. 825, 830, 632 S.E.2d 105 (2006)

. The Supreme Court later clarified this holding by explaining that “[t]he state is immune from liability if the alleged negligence causing an injury, which injury occurs during implementation of policy, lies in some defect in the policy itself.” Ga. Dept. of Public Safety v. Davis , 285 Ga. 203, 206, 676 S.E.2d 1 (2009). However, “[t]he state is not immune from liability where its employee is implementing a non-defective policy, but does so in a negligent manner.” Id. Moreover, “[a]lthough the state may be immune from liability for negligence in creating a certain policy which causes injury during its implementation, such immunity is unavailable for an employee's allegedly negligent act or omission which is not authorized by any policy.” Id.

The parties do not dispute that the policy...