Howell v. Willis

• Decision Date: 29 June 2012
• Docket Number: No. A12A0222.,A12A0222.
• Citation: 729 S.E.2d 643,12 FCDR 2219
• Parties: HOWELL et al. v. WILLIS.
• Court: Georgia Court of Appeals

729 S.E.2d 643

12 FCDR 2219

HOWELL et al.

v.WILLIS.

No. A12A0222.

Court of Appeals of Georgia.

June 29, 2012.

John Phillip Cannon, Albany, for Howell et al.

William C. Sanders, Thomasville, for Willis.

ADAMS, Judge.

Lee and Michelle Howell appeal from the trial court's order granting summary judgment in favor of Ernest Willis in their suit for damages arising from the construction of their home. We affirm for the reasons set forth below.

The trial court helpfully summarized the background of this case in its summary judgment order, as follows:

This case arises from the construction of a residence in Lee County, Georgia, which is owned by [the Howells]. [The Howells] employed Defendants Shawn McDonald ¹ and Shawn McDonald, LLC (hereinafter referred to collectively as “McDonald”) to construct the residence. [The Howells] contend that, after the construction of the residence was completed, and soon after they moved in, problems with the residence were noted. [The Howells contend] that multiple problems were caused by inferior work by the building contractor, McDonald. Other problems were attributed to alleged negligence on the part of Defendant Ernest Willis (“Willis”), a building inspector for Lee County, Georgia. Specifically, [the Howells] contend that Willis passed on inspection the concrete slab on which the house was constructed, which [the Howells] contend was too low and did not meet the applicable building code. The summary judgment granted herein pertains only to Willis and the claims asserted against him in his individual capacity. [The Howells] have conceded that their claims against Willis in his official capacity are barred by the doctrine of governmental immunity inasmuch as those claims are the same as claims against Lee County itself, which employed Willis. This action has already been dismissed as to the Lee County Board of Commissioners, which was also named as a defendant....

Accordingly, this appeal addresses only the claims against Willis in his individual capacity and his assertion of the defense of official immunity as to those claims.

“The doctrine of official immunity, also known as qualified immunity, affords limited protection to public officers and employees for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption.” (Citation omitted.) Burroughs v. Mitchell County, 313 Ga.App. 8, 10, 720 S.E.2d 335 (2011). See also OCGA § 50–21–24(2).

[A] public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee's independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Footnotes omitted.) Cameron v. Lang, 274 Ga. 122, 123(1), 549 S.E.2d 341 (2001). Thus, “[t]he single overriding factor is whether the specific act from which liability arises is discretionary or ministerial.” (Punctuation and footnote omitted.) Happoldt v. Kutscher, 256 Ga.App. 96, 99(1), 567 S.E.2d 380 (2002). And the only question before us is whether Willis's inspection of the property was a ministerial or discretionary act.²

The distinction between a ministerial act and a discretionary act is defined as follows under Georgia law:

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. A discretionary act, however, 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. Whether the act of a public official is ministerial or discretionary is determined by the facts of each individual case, particularly the facts specifically relevant to the official's act or omission from which the alleged liability arises.

(Citations and punctuation omitted.) Grammens v. Dollar, 287 Ga. 618, 619–620, 697 S.E.2d 775 (2010). And where, as here, the facts concerning the government employee's behavior are not in dispute, the court determines whether those acts were discretionary or ministerial in determining whether the employee is entitled to official immunity. See Nichols v. Prather, 286 Ga.App. 889, 896(4), 650 S.E.2d 380 (2007). And on appeal from the trial court's summary judgment order, we review the trial court's grant of summary judgment de novo to determine whether the evidence demonstrates a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Citation omitted.) Burroughs v. Mitchell County, 313 Ga.App. at 8–9, 720 S.E.2d 335.

Willis testified in his deposition that he was the Lee County inspector who inspected the construction on the Howells' residence. At the time of the deposition in August 2009, Willis had been working with the Lee County Inspection Department for six to seven years and prior to that had worked in commercial construction. Willis stated that he inspected the foundation on the Howells' house on May 31, 2007. During that inspection, he looked at the footing to see if the rebar was properly in place and measured the footer to make sure that it was 18 inches. He determined that it was “okay.” Willis also looked at the building slab before it was poured and measured from the top of the proposed slab to the dirt to determine that it was up to four inches. He determined that “[i]t was good.” Willis did not recall the number of places he measured the Howells' foundation, but it would be more than one. He uses his own judgment to determine exactly where on a particular slab he needs to measure.

In addition to the slab and foundation measurements, Willis also confirmed that McDonald had left clearance around the building. He also walked around the outside of the foundation to determine if it came above ground “roughly” ten to twelve inches. Although he could not recall how many different places he measured the Howells' foundation, he said it was “good.” Based on this inspection, Willis determined that the minimum code requirements had been met with regard to the Howells' slab and foundation, and he based his issuance of the Certificate of Occupancy upon this and subsequent inspections.

In support of his motion for summary judgment, Willis submitted an affidavit averring that he used his personal judgment and discretion in determining “whether provisions of the applicable building code were met with respect to the purposes and intent of the code.” He also indicated that he carried out these inspections without direct supervision by, or specific direction, from anyone else associated with Lee County government. Willis also submitted an affidavit from his supervisor Joey Davenport, Lee County's Chief Building Official, who confirmed that in conducting inspections on the Howells' residence, Willis “was authorized to use his personal judgment and discretion in determining whether provisions of the applicable building code were met with respect to the purposes and intent of the code,” including the methods he employed and the number of inspections he made. Davenport stated that Willis, therefore, was authorized to conduct the inspections without direct supervision or specific instructions from him or anyone in the building department. Davenport also said that Willis had discretion in addressing “any discrepancies he observed, which, in his opinion, did not significantly deviate from the intent and purposes of the applicable building code, or where strict interpretation of the literal wording of the building code would be impractical.”

In opposition to Willis's motion, the Howells presented the affidavit of Greg C. Evans, a licensed professional engineer, who inspected the Howells' residence on December 22, 2010, approximately three and one-half years after Willis conducted his inspection. Evans opined that the concrete slab approved by Willis “was not at a sufficient elevation to prevent future damage to the residence by surface water,” which he asserts should have been easily detected by Willis and which should have prompted him to require that McDonald take corrective measures. He also noted that the elevation of the Howells' front yard obviously decreases in elevation toward the home, which he asserts is also a building code violation.³

The trial court concluded based upon the evidence that Willis's actions in inspecting the Howells' residence were discretionary, not ministerial, in nature and thus that Willis enjoys “immunity from suit in his individual capacity.”

Willis bore the burden on summary judgment of demonstrating that he was entitled to official immunity by showing that the specific acts he performed were discretionary. See Ga. Dept. of Corrections v. Lamaine, 233 Ga.App. 271, 275(1), 502 S.E.2d 766 (1998) (Beasley, J., dissenting). Cf. Sawyer v. Coleman, 245 Ga.App. 37, 38–39, 537 S.E.2d 193 (2000) (in actions under 42 U.S.C. § 1983, government official has burden of demonstrating that alleged violation occurred while she was acting within the scope of her discretionary authority). And this Court has previously held in the case of an inspection “the specific act from which liability arises” is not an inspector's appearance at a particular site to conduct an inspection. But rather liability “must arise from the acts [the inspector] was required to perform during the inspections.” Happoldt v. Kutscher, 256 Ga.App. at 99(1), 567 S.E.2d 380.

Willis presented evidence showing that he was required to perform inspections, but that he was granted discretion in determining how he went about conducting them, the methodology he employed, the number of inspections he made and the requirements, if any, he placed on contractors afterward. Thus, for example, he was not required to measure a foundation in a particular place or number of...