Schmidt v. Adams

• Decision Date: 30 November 1993
• Docket Number: No. A93A1573,A93A1573
• Citation: 211 Ga.App. 156,438 S.E.2d 659
• Parties: SCHMIDT v. ADAMS.
• Court: Georgia Court of Appeals

Page 659

438 S.E.2d 659

211 Ga.App. 156

SCHMIDT v. ADAMS.

No. A93A1573.

Court of Appeals of Georgia.

Nov. 30, 1993.

Johnson & Montgomery, Albert S. Johnson, Harry W. MacDougald, Robert H. Walling, for appellant.

John E. Talmadge, for appellee.

SMITH, Judge.

Plaintiff Adams brought this wrongful death action against the Fulton-DeKalb Hospital Authority, Emory University and Emory Medical Care Foundation, Inc., the treating physician at Grady Hospital, the estate of the former physician at the DeKalb County Jail, a nurse at the DeKalb County Jail, and Schmidt, a physician's assistant at the DeKalb County Jail. Adams contends that the defendants were negligent in their diagnosis and treatment of his wife's fatal pulmonary emboli.

Schmidt and the nurse moved for summary judgment on the basis of their official immunity as salaried employees of the DeKalb County Sheriff's Department. ¹ The trial court denied the motion in a brief order and certified the judgment for immediate review. Schmidt's application for interlocutory review of the trial court's order was granted and this appeal followed.

Schmidt's sole contention on appeal is that he was entitled to a grant of summary judgment on the basis of his official immunity under the authority of Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980) and Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990). We agree and reverse.

Sovereign or governmental immunity, which applies to the state and its subdivisions, is intended to protect the public purse. Hennessy v. Webb, supra, 245 Ga. at 329, 264 S.E.2d 878. Official immunity, in contrast, is applicable to government officials and employees sued in their individual capacities. While official immunity does not apply to purely ministerial duties required by law, public officials are immune from individual liability for discretionary acts undertaken in the course of their duties and without wilfulness, malice, or corruption. Id. at 330-331, 264 S.E.2d 878. This official immunity is intended to protect public officials in the honest exercise of their judgment, however erroneous or misguided that judgment may be. " 'Otherwise, not only would it be difficult to get responsible men to fill public office, but there would be constant temptation to yield officially to unlawful demands, lest private liability be asserted and enforced.' " Price v. Owen, 67 Ga.App. 58, 60, 19 S.E.2d 529 (1942).

Employees of a county sheriff's department are immune from liability for negligent acts that are discretionary rather than ministerial. See Logue v. Wright, supra, 260 Ga. at 207(1), 392 S.E.2d 235. " '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.' " Joyce v. Van Arsdale, 196 Ga.App. 95, 96, 395 S.E.2d 275 (1990). "[W]hether a duty is ministerial or discretionary turns on the character of the specific act, not the general nature of the official's position. [Cits.]" Vertner v. Gerber, 198 Ga.App. 645, 646, 402 S.E.2d 315 (1991).

In essence, Adams complains that Schmidt was negligent in failing to properly diagnose his wife's illness before she was transferred from the jail to Grady Hospital, and in failing to transfer her to the hospital at some earlier time. Such decisions clearly would be made by Schmidt based on his examination of the facts, his experience, and the exercise of his best judgment. The acts complained of are thus "discretionary" and fall within the scope of Schmidt's official immunity.

Adams contends that Schmidt is excluded from the protection of official immunity by this court's decisions in Irwin v. Arrendale, 117 Ga.App. 1, 159 S.E.2d 719 (1967) and Jackson v. Miller, 176 Ga.App. 220, 335 S.E.2d 438 (1985). Irwin, however, was decided on the doctrine of sovereign immunity alone; official immunity was never raised or discussed. Moreover, Hennessy explicitly rejected the common law principle relied upon in Irwin with regard to the individual liability of government personnel. Compare 117 Ga.App. at 3(3), 159 S.E.2d 719 with 245 Ga. at 330, 264 S.E.2d 878. Later cases have likewise rejected Irwin 's position with respect to jail personnel, and have applied official immunity. See Alford v. Osei-Kwasi, 203 Ga.App. 716, 721(2), 418 S.E.2d 79 (1992).

Jackson v. Miller, in its turn, has been criticized repeatedly for its apparent direct conflict with Hennessy, Roberts v. Grigsby, 177 Ga.App. 377, 379, 339 S.E.2d 633 (1985) (Deen, P.J., concurring specially), and for its failure to recognize the distinction between sovereign and official immunity. Swofford v. Cooper, 184 Ga.App. 50, 56, 360 S.E.2d 624 (1987) (Beasley, J., dissenting), affd. Cooper v. Swofford, 258 Ga. 143, 368 S.E.2d 518 (1988). However, Jackson is distinguishable on its facts from the case before us.

In Jackson, this...