Heller v. City of Atlanta

Decision Date19 February 2008
Docket NumberNo. A07A1871.,A07A1871.
Citation659 S.E.2d 617,290 Ga. App. 345
PartiesHELLER et al. v. CITY OF ATLANTA et al.
CourtGeorgia Court of Appeals

James Hugh Potts II, for Appellants.

Thurbert E. Baker, Atty. Gen., Robert C. Edwards, Asst. Atty. Gen., Troutman Sanders, Sidney Leighton Moore III, Laura Sauriol-Broward, Schenck & Associates, Hollis C. Cobb, for Appellees.

MIKELL, Judge.

This is an appeal from the grant of dispositive relief to all governmental defendants in a wrongful death and nuisance action filed by Ed Heller, individually and as administrator of the estate of his deceased wife, Patricia Heller. Mrs. Heller was killed on January 29, 2003, when the taxicab in which she was riding spun out of control on a wet overpass on Interstate 85 and collided with a tree. The taxicab's tires had little or no tread, but the vehicle had passed a mandatory City of Atlanta (the "City") inspection the previous day. Heller sued the City; Greg Shepard, a Vehicle for Hire Inspector employed by the City in the Atlanta Police Department's Bureau of Taxicabs and Vehicles for Hire ("Taxi Bureau"), who inspected the taxicab; the state Department of Transportation ("DOT"), which maintained the roadway; Abdallah Adem, the cab driver; and United Express Cab Company ("United"), the company for whom Adem drove the cab. The trial court granted summary judgment to the City on Heller's nuisance claim, granted summary judgment to Shepard on the basis of official immunity, and dismissed the claims against the DOT on sovereign immunity grounds. Heller appeals. Because we find that Shepard's act of inspecting the tires was a ministerial function, we reverse the grant of summary judgment to Shepard. Further, because the trial court erred in concluding that the DOT was excused from liability by the inspection and permitting exceptions to the waiver of sovereign immunity in the Georgia Tort Claims Act ("GTCA"),1 we reverse the grant of the DOT's motion to dismiss. We affirm the grant of summary judgment to the City on the nuisance claim.

"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 So viewed, the evidence shows the following relevant facts.

Adem brought his taxicab to the Taxi Bureau on January 28, 2003, for a semi-annual inspection, which is required in order to maintain a valid Certificate of Public Necessity and Convenience ("Certificate") issued by the City. The 1995 Code of Ordinances of the City of Atlanta ("City Code") Sec. 162-34(c)(2)(a), requires that "tires [among all other exterior parts of the taxicab] shall be inspected to ascertain that each is functioning properly." Shepard performed the inspection. Although he passed the United taxicab, he did not complete the inspection sheet, which lists all the exterior and interior parts of the vehicle separately. The list has a box next to each part, and the inspector is supposed to mark "yes" or "no" to indicate whether the part, including tires, is functioning properly. Shepard simply wrote "pass" on the front of the form without checking any box.

On the following day, Mrs. Heller, a 51-year-old consultant from Boston who earned more than $500,000 annually, arrived at the Atlanta airport and entered Adem's taxicab at 11:00 a.m. It was raining, and the roads were wet. Adem proceeded northbound on Interstate #85. The taxicab began spinning out of control while driving around a curve in the left-hand lane near the Hapeville overpass, crossed three lanes of traffic, and crashed into a large tree 20 or more feet away from the edge of the acceleration lane, killing Mrs. Heller instantly. Adem was charged with vehicular homicide in the second degree, to which he pleaded guilty on August 23, 2005. Specifically, Adem pleaded guilty to causing Mrs. Heller's death by violating two laws: OCGA § 40-8-74(e)(1), which mandates that "[a]ll tires ... [s]hall have not less than 2/32 inch tread measurable in all major grooves," and OCGA § 40-6-180, driving too fast for conditions. The affidavit for his arrest warrant reflects that the taxicab had zero tread on the rear tires.

1. In his first enumeration of error, Heller challenges the grant of summary judgment to Shepard on official immunity grounds, arguing that his acts or omissions during the inspection of the taxicab were ministerial, not discretionary. Heller further alleges that Shepard negligently inspected the taxicab, that as a result of the negligent inspection, Adem was allowed to drive with slick tires, and that the slick tires were a proximate cause of Mrs. Heller's death.

The doctrine of official immunity provides that a public officer or employee may be held personally liable for his negligent ministerial acts, but he is immune from damages caused by his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority.3 The difference between ministerial and discretionary acts is explained as follows:

A discretionary act is one calling 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. On the other hand, 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.4

In deciding whether an action is discretionary or ministerial, the court must focus on the character of the specific actions taken by the government official or employee, not the general nature of the job. 5

Under this standard it makes no difference that the official is required to perform discretionary acts if the complained-of act is more properly characterized as ministerial. The grant of qualified immunity, then, is really more in the nature of a transitory privilege rooted in the fear that a contrary rule would inhibit the judgment upon which good government rests. The single overriding factor is whether the specific act from which liability allegedly arises is discretionary or ministerial.6

This determination is made on a case-by-case basis.7

In the case at bar, the specific action of which Heller complains is the manner in which Shepard inspected the tires of the taxicab at issue. Shepard testified that he inspects tires by looking at them from a standing position. In so doing, Shepard asserts that he is required to exercise judgment, rendering the act discretionary.8 We do not agree. "[T]he execution of a specific task is characterized as ministerial even though the manner in which it is accomplished is left to the employee's discretion."9 Checking tires for proper tread depth is a simple, ministerial task. There is a state law which provides that "[a]ll tires ... [s]hall have not less than 2/32 inch tread measurable in all major grooves."10 There is evidence that the tires which Shepard claims to have inspected did not have tread depth of at least 2/32 of an inch. Shepard points out, however, that nothing in the City Code specifies the manner in which he must check the tires.11 He testified that vehicle for hire inspectors are neither authorized nor trained to enforce state codes; that he was unaware of the required tread depth under state law for passenger vehicles, even though he has been a supervisor since 2003; and that he does not use a mechanical device to measure tread depth.

It is true that the official job description for a City Vehicle for Hire Inspector states that the purpose of the job "is to perform inspections work in the enforcement of City ordinances designed to ensure Atlanta's citizens and visitors, safe, courteous and professional Vehicle for Hire Services."12 But the same document states that one of the inspector's "Essential Duties and Responsibilities" is to "[e]nforce[ ] all city and state codes, ordinances, laws and regulations to ensure safe vehicle for hire operations."13 Shepard admitted that this was his job description on the date he performed the inspection, although he testified that he was "not aware" of any such state code.

In urging that we affirm the trial court, Shepard suggests that he is cloaked with official immunity for his actions because he had no duty and no authority to enforce state law and because the manner in which he inspected tires was left to his discretion. This argument is disingenuous. The job description of a city vehicle for hire inspector states that he or she is required to enforce state codes. OCGA § 40-8-74 is a state law. It mandates minimum tread depth for passenger vehicles. Shepard, as a city vehicle for hire inspector, was required to check for minimum tread depth. Shepard was also required to complete the inspection checklist before he could pass the taxicab as safe.14 Those tasks were simple, absolute, and definite; hence they were ministerial. Shepard is not entitled to official immunity, and he may be held liable if a jury determines that he performed his tasks negligently. The trial court erred in granting summary judgment to Shepard.

2. Heller next contends that the trial court erred in granting summary judgment to the City on his nuisance claim. Heller alleges that Shepard's practice of not properly inspecting tires was known to department supervisors and constituted a nuisance. We disagree.

"A nuisance is anything that causes hurt, inconvenience, or damage to another[;] and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance."15 "In common parlance, the word nuisance is a broad term. In law it has a restricted meaning."16 Before a municipality may be held liable for maintaining a nuisance, "there must be the maintenance of a...

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16 cases
  • City of Atlanta v. Mitcham
    • United States
    • Georgia Supreme Court
    • February 16, 2015
    ...applied in executing a specific duty. See McDowell v. Smith, 285 Ga. 592, 593, 678 S.E.2d 922 (2009) ; Heller v. City of Atlanta, 290 Ga.App. 345, 347–348, 659 S.E.2d 617 (2008). See also Murphy v. Bajjani, 282 Ga. 197, 199, 647 S.E.2d 54 (2007). While both terms share the ministerial modif......
  • Gish v. Thomas
    • United States
    • Georgia Court of Appeals
    • March 17, 2010
    ...or ministerial. This determination is made on a case-by-case basis. (Punctuation and footnotes omitted.) Heller v. City of Atlanta, 290 Ga.App. 345, 347-348(1), 659 S.E.2d 617 (2008). In Cameron, our Supreme Court found that initiating a high speed chase against persons suspected of car the......
  • Howell v. Willis
    • United States
    • Georgia Court of Appeals
    • June 29, 2012
    ...and certain as to merely require the execution of a simple task. This case is distinguishable, therefore, from Heller v. City of Atlanta, 290 Ga.App. 345, 659 S.E.2d 617 (2008) upon which the Howells rely. In that case, the defendant, a city Vehicle for Hire Inspector, had purported to cond......
  • Georgia Dept. of Transp. v. Heller
    • United States
    • Georgia Supreme Court
    • March 23, 2009
    ...to sovereign immunity and that Shepard was entitled to official immunity from Heller's claims. See generally Heller v. City of Atlanta, 290 Ga.App. 345, 659 S.E.2d 617 (2008). We granted certiorari in these consolidated cases to determine (1) whether the Court of Appeals erred in its findin......
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4 books & journal articles
  • Workers' Compensation - H. Michael Bagley, Daniel C. Kniffen, and Katherine D. Dixon
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 60-1, September 2008
    • Invalid date
    ...App. 578, 621 S.E.2d 554 (2005); see generally Beck v. Flint Constr. Co., 154 Ga. App. 490, 268 S.E.2d 739 (1980). 29. Great American, 290 Ga. App. at 345, 659 S.E.2d at 628. 30. 286 Ga. App. 334, 649 S.E.2d 329 (2007). 31. See id. at 338-39, 649 S.E.2d at 332-33. 32. Id. at 334, 649 S.E.2d......
  • Local Government Law - R. Perry Sentell, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 60-1, September 2008
    • Invalid date
    ...must be continuous or regularly repetitious." Id. at 216, 648 S.E.2d at 737 (citing Hibbs, 267 Ga. at 338, 478 S.E.2d at 122). 115. 290 Ga. App. 345, 659 S.E.2d 617 (2008). 116. See id. at 345, 350-51, 659 S.E.2d at 619, 622-23. The inspector certified the taxicab's safety one day preceding......
  • Local Government Law
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 67-1, September 2015
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    ...at 328 (discussing immunity set out in O.C.G.A. § 36-33-1(b)). 132. Id. at 585, 769 S.E.2d at 328; see also Heller v. City of Atlanta, 290 Ga. App. 345, 347-50, 659 S.E.2d 617, 620-22 (2008).133. Primas, 296 Ga. at 584-85, 769 S.E.2d at 328.134. Id. at 585, 586, 769 S.E.2d at 328.135. 328 G......
  • Trial Practice and Procedure - Kate S. Cook, Alan J. Hamilton, and John C. Morrison Iii
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 60-1, September 2008
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