Joyce v. Van Arsdale

• Decision Date: 29 May 1990
• Docket Number: No. A90A0665,A90A0665
• Citation: Joyce v. Van Arsdale, 196 Ga.App. 95, 395 S.E.2d 275 (Ga. App. 1990)
• Parties: JOYCE v. VAN ARSDALE, et al.
• Court: Georgia Court of Appeals

Page 275

395 S.E.2d 275

196 Ga.App. 95

JOYCE v. VAN ARSDALE, et al.

No. A90A0665.

Court of Appeals of Georgia.

May 29, 1990.

Rehearing Denied June 22, 1990.

Certiorari Denied Sept. 4, 1990.

Darroch & Obenshain, Robert M. Darroch, C. David Vaughan, Emory A. Wilkerson, Atlanta, for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, Swainsboro, for appellees.

SOGNIER, Judge.

Effie Marie Joyce brought suit against the Emanuel County Board of Commissioners and two county employees, Sam Van Arsdale and Carlee Grimes, to recover for property damage and personal injuries sustained when her car collided with a dismantled barricade in a county road. Joyce appeals from the summary judgment awarded to Van Arsdale and Grimes.

The material facts are not in dispute. The record reveals that after its periodic inspection of Emanuel County highway bridges, the Georgia Department of Transportation (DOT) advised the County that because of the condition of certain county bridges, federal regulations mandated that federal highway funds would no longer be transferred to the County unless the bridges were closed or repaired within ninety days. In response, the Board of Commissioners instructed appellee Van Arsdale, the County Road Superintendent, to take the necessary steps to close certain bridges, including the one near the intersection of highways 77 and 79. Van Arsdale then delegated the responsibility for closing the bridges and placing appropriate signs and barricades to appellee Grimes, who was the Assistant Road Superintendent and supervisor of a work crew. Grimes and his crew constructed a barricade of bridge timbers and posted "bridge closed" signs along the highway. Appellant was injured when she drove her automobile across the bridge and hit the barricade, veered off the roadway and into a tree, and overturned. Grimes stated in answer to appellant's interrogatories that the barricade and sign had been tampered with and partially dismantled by unknown persons.

The trial court concluded that appellees were entitled to the defense of sovereign immunity available to the County because the County's participation in an interlocal risk management agency program (IRMA) did not constitute the provision of liability insurance which under Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution would constitute a waiver of sovereign or official immunity, and because of this court's decisions concerning discretionary and ministerial acts for county employees issued prior to the Supreme Court's ruling in Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990).

We agree with appellant that the distinction between discretionary and ministerial acts remains viable for county employees, as the Supreme Court recently ruled in Logue that even if a county has not waived sovereign immunity by the purchase of insurance, a county employee nonetheless may be held liable for the negligent performance of a ministerial act. Conversely, if the employee acted in his official capacity and the challenged act involved the performance of a discretionary duty, the employee is entitled to the defense of official immunity provided the act complained of was not malicious, willful, or corrupt, or done in reckless disregard for the safety of others. Id. at 207, 392 S.E.2d 235. Given that the trial court's conclusion in the case at bar that the County had not waived its immunity through the purchase of insurance is not disputed on appeal, the propriety of the grant of summary judgment turns on whether appellees' acts were discretionary or ministerial.

"[W]here an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability.... These discretionary acts lie midway between judicial and ministerial ones.... and the question depends on the character of the act." (Punctuation omitted.) Hennessy v. Webb, 245 Ga. 329, 330-331, 264 S.E.2d 878 (1980). " '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 single overriding factor is whether the specific act from which liability allegedly arises is discretionary or ministerial.' [Cit.]" Shuman v. Dyess, 175 Ga.App. 213, 216, 333 S.E.2d 379 (1985). "A ministerial act is commonly one that is...