Stone v. Taylor

• Citation: 233 Ga. App. 886,506 S.E.2d 161
• Decision Date: 14 August 1998
• Docket Number: No. A98A1613.,A98A1613.
• Parties: STONE v. TAYLOR et al.
• Court: United States Court of Appeals (Georgia)

506 S.E.2d 161

233 Ga. App. 886

STONE v. TAYLOR et al.

No. A98A1613.

Court of Appeals of Georgia.

August 14, 1998.

Certiorari Denied January 8, 1999.

Blackwood, Matthews & Steel, James B. Matthews III, Atlanta, for appellant.

Fendig, McLemore, Taylor, Whitworth & Durham, James B. Durham, Brunswick, Beth M. Duncan, for appellees.

JOHNSON, Presiding Judge.

Jacqueline Lee Stone appeals the trial court's grant of summary judgment to Virgil Taylor, Chairman of the Bacon County Commission, and Larry Deen, Bacon County Road Supervisor, on grounds of sovereign and official immunity. We review the trial court's order under the standard established in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991), to decide whether the evidence, when taken in the light most favorable to Stone, establishes a genuine issue of fact regarding whether Taylor and Deen are entitled to immunity as a matter of law. For reasons which follow, we affirm.

Viewed in the light most favorable to Stone, the facts show as follows: In February 1994, Bacon County contracted with the Georgia Department of Transportation (hereinafter "DOT") to resurface portions of County Road 280. The DOT, in turn, contracted with an asphalt company which actually performed the resurfacing. Under the Local Assistance Road Program (hereinafter "LARP") agreement executed between Bacon County and the DOT, the county agreed to provide several services, including leveling the shoulders of the road "when applicable." The LARP agreement obligated the contractor to provide low or soft shoulder warning signs, but stated that if the contractor was not responsible for shoulder construction, the duty fell on "the local government or other."

After the repairing was completed, Taylor inspected the shoulders and testified that he found shoulder drop-offs of one to one-and-a-half inches. Taylor testified that he was responsible for weighing factors to decide what modifications, if any, needed to be made and when to make them. At the time, he took no action to level the shoulders, paint lines, or post low or soft shoulder warning signs. Taylor testified that during his inspection he "didn't see anything that dangerous anywhere" on the road. Taylor had over ten years of experience in road construction, and his decision regarding the road shoulders was based on that experience. Bacon County had no policies or procedures dealing with the leveling or other treatment of road shoulders.

Stone states in her affidavit that on the night of March 16, 1995, she was driving down the newly paved section of County Road 280, veered off the road and struck a tree. Stone asserts that the drop-off from the road surface to the shoulder was between four and seven inches at the site of her accident, and that the steep drop-off prevented her from safely steering back onto the pavement after she left the road. After Stone's accident, the shoulders of County Road 280 were leveled.

Stone sued Taylor and Deen individually and as officials of Bacon County, alleging negligent failure to carry out their "specific contractual duty" with regard to the safety of the shoulders of County Road 280. The trial court granted summary judgment to Taylor and Deen, finding them protected by sovereign and official immunity. This is an appeal from that order.

1. Sovereign immunity is the immunity provided to governmental entities and to public employees sued in their official capacities. Gilbert v. Richardson, 264 Ga. 744, 749-750(4), 452 S.E.2d 476 (1994). To the extent applicable, official immunity protects individual public officials and employees for torts they commit in performing their official functions. Id. at 752, 452 S.E.2d 476. Stone does not address the sovereign immunity of Taylor and Deen as Bacon County officials in her enumeration of errors or her brief submitted in support of this appeal. Instead, she focuses on the distinction between ministerial and discretionary duties necessary for deciding the individual liability of Taylor and Deen. We therefore need not address any issues deciding the sovereign immunity of Taylor and Deen as Bacon County officials and turn instead to the question of official immunity.

2. In her first enumeration of error, Stone asserts that Taylor and Deen are not protected by official immunity because the acts involved in this case are ministerial rather than discretionary. We disagree.

"Official immunity ... is applicable to government officials and employees sued in their individual capacities." Hemak v. Houston County School Dist., 220 Ga.App. 110, 112, 469 S.E.2d 679 (1996). "Damage suits are maintainable in this state against government officers and agents for failure to perform ministerial duties, but such officers and employees are immune from negligence claims when the acts complained of involve a discretionary function of an office. [Cit.]" Nelson v. Spalding County, 249 Ga. 334(2)(a), 290 S.E.2d 915 (1982). Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case. Id.

"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. [Cit.]" Joyce v. Van Arsdale, 196 Ga.App. 95, 96, 395 S.E.2d 275 (1990). "A government employee who is invested with discretion and empowered to exercise his judgment in the course of execution of his duties is ... immune from liability when performing discretionary tasks.... [Cit.] The question whether a duty is ministerial or discretionary turns on the character of the specific act, not the general nature of the official's position. [Cit]." Vertner v. Gerber, 198 Ga.App. 645, 646, 402 S.E.2d 315 (1991).

We find the circumstances present in this case analogous to the ones presented to this Court recently in Coffey v. Brooks County, 231 Ga.App. 886(2), 500 S.E.2d 341 (1998). In Coffey, we held that decisions by county employees regarding if and when to barricade roads during heavy rains were discretionary. Id. The decisions involved...