Long v. Hall County Bd. of Com'rs
| Decision Date | 09 January 1996 |
| Docket Number | Nos. A95A2834,s. A95A2834 |
| Citation | 467 S.E.2d 186,219 Ga.App. 853 |
| Parties | LONG v. HALL COUNTY BOARD OF COMMISSIONERS et al. LONG v. DEPARTMENT OF CORRECTIONS et al. LONG v. PHILLIPS et al. HAMMOND v. HALL COUNTY BOARD OF COMMISSIONERS et al. HAMMOND v. DEPARTMENT OF CORRECTIONS et al. HAMMOND v. PHILLIPS et al. to A95A2839. |
| Court | Georgia Court of Appeals |
Action for damages. Hall Superior Court. Before Judge Story.
Paul R. Vancil, Atlanta, for Long and Hammond.
Daryl A. Robinson, Senior Assistant Attorney General, David J. Marmins, Assistant Attorney General, England & McKnight, George M. Weaver, Atlanta, for Hall County Board of Commissioners.
Michael J. Bowers, Attorney General, William F. Amideo, Assistant Attorney General, Atlanta, for Georgia Department of Corrections.
Whelchel, Dunlap & Gignilliat, Charles N. Kelley, Jr., Gainesville, for Phillips.
Plaintiffs Marsha Long and Peggy Lynn Hammond brought separate but identical tort actions seeking to recover for personal injuries received when, on June 9, 1992, the automobile in which they were riding was struck by a truck owned by defendant Malcolm Richard Phillips and driven by defendant Jerome Walker. The material facts are not in dispute. While an inmate under the custody of defendant Hall County Correctional Institute (the "Correctional Institute") and defendant Georgia Department of Corrections (the "Department of Corrections"), Jerome Walker escaped from a minimum security work detail. Jerome Walker then stole Malcolm Richard Phillips' truck, which had been parked with the keys left in the ignition. Allegedly as a result of Jerome Walker's negligent driving, he caused a head-on collision resulting in plaintiffs' injuries. According to the amended complaint, Jerome Walker "was permitted to gain access to defendant [Malcolm Richard] Phillips' vehicle due to the negligence of employees and/or agents of the ... Correctional Institute and/or the ... Department of Corrections," because Jeffery A. Cates, the correctional officer assigned to the particular work detail, failed to inspect the work area for means of escape and further failed to supervise Jerome Walker. Defendant Malcolm Richard Phillips was negligent by leaving "his vehicle unlocked knowing that the keys were in the vehicle and knowing that, ... prisoners were in the area where the vehicle was parked." Defendant Hall County Board of Commissioners is allegedly "vicariously liable under a theory of respondeat superior for the acts, omissions and negligence of defendant [Malcolm Richard] Phillips."
Jerome Walker was personally served by leaving a copy of each summons and complaint with Robert Ingram, "a person of suitable age and discretion," at Jerome Walker's dwelling and usual place of abode. No defensive pleadings were filed on Jerome Walker's behalf and default judgment was entered against him. The Hall County Board of Commissioners and the Correctional Institute answered, denying the material allegations of negligence, asserting immunity, but further admitting that Jerome Walker was a "state prisoner" at the time of the collision; that the Correctional Institute is a "county work camp housing state inmates and [which] operates under the control of Hall County[, ...] subject to various regulations of the Georgia Department of Corrections"; and that Jerome Walker was on a "work detail prior to the collision...." Also there is an "insurance policy apparently covering the ... Correctional Institute for any liability against it based on the incident ... involving the motor vehicle collision." The Department of Corrections denied the material allegations but admitted that "[u]nder the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., the Georgia Department of Corrections has waived any sovereign immunity." Defendant Malcolm Richard Phillips admitted that the vehicle "owned by him ... was stolen by Defendant Walker on June 9, 1992[,]" and cross-claimed against Jerome Walker, seeking to recover the value of his vehicle and reimbursement for any damages assessed against Malcolm Richard Phillips.
After discovery, each remaining defendant moved for summary judgment, which was granted by the trial court. Plaintiffs appealed directly to the Supreme Court of Georgia, which transferred these six appeals to the Court of Appeals of Georgia. In Case No. A95A2834, Marsha Long appeals from the grant of summary judgment to defendants, the Hall County Board of Commissioners and the Correctional Institute. In Case No. A95A2835, Marsha Long appeals from the grant of summary judgment to the Department of Corrections and its agents. In Case No. A95A2836, Marsha Long appeals from the grant of summary judgment to Malcolm Richard Phillips. In Case No. A95A2837, Peggy Lynn Hammond appeals from the grant of summary judgment to the Hall County Board of Commissioners and the Correctional Institute. In Case No. A95A2838, Peggy Lynn Hammond appeals from the grant of summary judgment to the Department of Corrections and its agents. In Case No. A95A2839, Peggy Lynn Hammond appeals from the grant of summary judgment to Malcolm Richard Phillips. As the plaintiffs raise identical contentions and enumerations of error, the cases are hereby consolidated for disposition on appeal in this single opinion. Held:
and A95A2839
1. With respect to defendant Malcolm Richard Phillips, plaintiffs contend the trial court's grant of summary judgment is erroneous because a jury should determine whether Malcolm Richard Phillips' act of leaving an unlocked car with the keys in it near a county work farm is reasonably foreseeable as a contributing cause to the injuries they sustained when Malcolm Richard Phillips' truck, as negligently driven by the escapee Jerome Walker, collided with their vehicle. This contention is controlled adversely to plaintiffs by a venerable line of authority holding that the alleged negligence of the owner, in leaving the keys in the ignition, is not the legal cause of personal injuries sustained due to the negligent operation of a stolen vehicle by a thief.
See Robinson v. Pollard, 131 Ga.App. 105[, 106(1), 107] (205 SE2d 86) (1974)." Dunham v. Wade, 172 Ga.App. 391, 392(2), 323 S.E.2d 223. In Georgia, it is not the duty of the owner or driver of an automobile, before leaving it parked, to render the vehicle "impossible for it to be started by a third person." Lewis v. Amorous, 3 Ga.App. 50, 56, 59 S.E. 338, supra. We decline plaintiffs' invitation to hold that Dunham v. Wade, 172 Ga.App. 391, 392(2), 393, 323 S.E.2d 223, supra, "incorrectly interprets O.C.G.A. § 40-6-201," regarding the absence of a statutory requirement that a driver remove the ignition key from an unattended car. In the two cases sub judice, the trial court correctly granted summary judgment to defendant Malcolm Richard Phillips, the owner of the stolen vehicle. His act in leaving his truck parked, unattended, and with the keys in the ignition, was not the legal cause of any injuries plaintiffs sustained in the subsequent collision. See Price v. Big Creek of Ga., 191 Ga.App. 534, 535, 382 S.E.2d 356.
and A95A2837
2. The trial court held that the Hall County Board of Commissioners and the Hall County Correctional Institute were entitled to summary judgment on the basis of sovereign immunity. Plaintiffs contend the trial court erred "in failing to find that sovereign immunity was waived, and in failing to find that Article I, Section II, Paragraph IX(e) of the [1983] Georgia Constitution, O.C.G.A. §...
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