Happoldt v. Kutscher

• Decision Date: 24 June 2002
• Docket Number: No. A02A0741., No. A02A0740
• Citation: 256 Ga. App. 96,567 S.E.2d 380
• Parties: HAPPOLDT v. KUTSCHER. Happoldt et al. v. Kutscher.
• Court: Georgia Court of Appeals

567 S.E.2d 380

256 Ga. App. 96

HAPPOLDT v. KUTSCHER.

Happoldt et al. v. Kutscher.

Nos. A02A0740, A02A0741.

Court of Appeals of Georgia.

June 24, 2002.

Lovett, Cowart & Ayerbe, Linwood R. Lovett, Paul R. Ayerbe, Bridgette M. Cooper, Atlanta, for appellants.

Misner, Scott & Grate, Donald J. Grate, Tracey K. Dewrell, Atlanta, for appellee.

PHIPPS, Judge.

The above-styled cases are appeals of summary judgment in personal injury and wrongful death actions arising from a vehicular collision at the intersection of a subdivision road and a county road. In each case, the subdivision review officer of Monroe County, John Kutscher, was named as one of multiple defendants. The plaintiffs in both cases asserted that improper construction of the subdivision road caused the county road to wash out and thereby led to the collision. They claimed that the subdivision road was constructed improperly due to Kutscher's negligence in failing to take enforcement action to ensure compliance with county road construction standards.

The collision occurred at the intersection of North Pointe Subdivision Road and Pate Road in Monroe County. James Happoldt was driving west on Pate Road. His sister, Julie Happoldt, was seated in the rear of his car. Contemporaneously, Delores Taylor was driving east on Pate Road. The Happoldt vehicle spun out of control and collided with the Taylor vehicle, causing the death of Julie Happoldt and the infliction of serious injuries upon James Happoldt.

In Case No. A02A0740, James Happoldt sued Kutscher and others for personal injuries. In Case No. A02A0741, John Happoldt and David Buice, as administrators of the estate of Julie Happoldt, sued Kutscher and others for Julie Happoldt's wrongful death. We will refer to all plaintiffs in both cases as "Happoldt."

Happoldt's theory was that as the Happoldt vehicle approached the subdivision road, its right front tire left the paved surface of the road and dropped into a rut created by a washout, thereby causing the vehicle to spin out of control. According to Happoldt, the washout was caused by storm water runoff being improperly diverted from North Pointe Subdivision Road onto Pate Road, rather than into ditches along the Pate Road right-of-way. Happoldt claimed that by failing to inspect North Pointe Subdivision Road at its bisection with Pate Road both before and after its construction, Kutscher breached ministerial duties imposed on him by the Monroe County Subdivision Ordinance and Road Standards (referred to as the "Monroe County ordinance," the "county ordinance" and the "ordinance"). The trial court awarded summary judgment to Kutscher in both cases under the doctrine of official immunity on grounds that he was charged with negligence in the performance of discretionary rather than ministerial functions. The court found no connection between Kutscher's duties and the washout of the road. Happoldt appeals. We find evidence that Kutscher breached certain ministerial duties. But based on the record before us, we find no evidence of a causal relationship between breach of those ministerial duties and the road conditions alleged to have caused the collision. Therefore, we affirm.

In reviewing the grant or denial of summary judgment, this court conducts a de novo review of the evidence. [Cit.] As the movant for summary judgment, the county employee[ ] had the burden to show there was no genuine issue of material fact for trial and that the undisputed facts, viewed in the light most favorable to the plaintiffs, warranted judgment as a matter of law. [Cit.]¹

1. "A suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer ( 1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty. [Cits.]"² "A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty."³ "A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed."⁴ "Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty. [Cit.]"⁵

The Monroe County ordinance imposes on the subdivision review officer a duty to make field inspections and supervise work being performed during the construction and installation of "public improvements"⁶ required by the ordinance. The purpose of these inspections is to ensure conformance to the rules and regulations of the ordinance. Before a final subdivision plat can be approved by the county board of commissioners, the review officer is generally required to certify that the developer has completed the construction and installation of "the streets, drainage, utilities and other improvements in accordance with the laws and specifications of Monroe County."

In Wanless v. Tatum,⁷ we held that an established policy requiring employees of the county's roads and drainage department to record and investigate citizen complaints concerning unsafe traffic conditions created a ministerial duty on the part of the employees to perform those tasks. Similarly, we concluded in Phillips v. Walls⁸ that the act of following an established policy requiring county employees to conduct an inspection after receiving complaints concerning visual obstructions to traffic control devices was ministerial.⁹

Monroe County has established a policy requiring its subdivision review officer to inspect subdivision construction sites and to review subdivision plats to ensure compliance with all requirements of the county ordinance. Therefore, Kutscher's duty to perform these tasks was ministerial. There is evidence of breach of duty, as Kutscher himself testified that he failed to inspect the subdivision road to determine compliance with any ordinance provision other than the one relating to right-of-way width requirements and that he did not give his approval to the final plat for North Pointe Subdivision.

We do conclude, however, that under the doctrine of official immunity Kutscher retains an immunity from liability only to the extent that the actions he was required to take during the course of the inspections were discretionary in nature. This conclusion finds support in Joyce v. Van Arsdale,¹⁰ wherein the county road superintendent had been instructed by the board of commissioners to close a defective bridge. Although the superintendent was given discretion in selecting the method for performing the work, we held that he was not entitled to immunity because the act of closing the bridge was ministerial.¹¹ In Joyce, we recognized that "[t]he single overriding factor is whether the specific act from which liability arises is discretionary or ministerial."¹²

In this case, "the specific act from which liability arises" is not Kutscher's appearance at the subdivision site to conduct inspections. Liability must arise from the acts Kutscher was required to perform during the inspections. This is shown by Kordares v. Gwinnett County,¹³ in which it was held that county employees who had generally inspected county bridges once or twice a year could not be held liable for failure to conduct subsurface inspections in the absence of any policy requiring subsurface inspections.

Happoldt charges Kutscher with negligence based on assertions that (1) North Pointe Subdivision Road was not constructed or maintained according to storm water control measures required by the county ordinance, (2) construction of the subdivision road was not in compliance with grading requirements set forth in the ordinance, and (3) the rights-of-way of Pate and North Pointe Subdiv...