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Georgia Court of Appeals Expands Ministerial Acts for the Purposes of Official Immunity

February 23, 2018

 

            Tracey Roberts and her husband were injured when the vehicle that she was driving struck a pile of dirt and an excavator at a Carroll County Water Authority (“CCWA”) work site.  As a result, Roberts filed a personal injury action against CCWA and Henry Junior Mulkey, a CCWA employee, in his individual capacity.  Roberts v. Mulkey, 343 Ga. App. 685, 808 S.E.2d 32, 34 (2017).  The trial court granted summary judgment to Mulkey on the basis of official immunity and CCWA on the basis of sovereign immunity.  Additionally, the trial court found that even if Mulkey and CCWA were not entitled to immunity, they were still entitled to summary judgment because Roberts was the sole proximate cause of her injuries.  On appeal, the Georgia Court of Appeals reversed in part and vacated in part, for the reasons below.

 

            On June 29, 2012, Mulkey was the crew leader assigned to fix an underground pipe on the side of Hog Liver Road in Carroll County.  At the work site, Mulkey used an orange excavator to dig a ditch so that the crew members could access the pipe.  Mulkey placed the excavated dirt onto the road such that vehicles traveling east would see the dirt before the excavator.  After the repairs were complete, Mulkey realized that he did not place any warning signs or traffic cones in the road.  Although Roberts testified that she was only driving 35 mph, when she encountered the work site she “saw a blur,” and hit the dirt pile and the excavator.

 

            The issue as to whether the appellees were entitled to immunity was whether the act of placing warning signs in the road was a ministerial or discretionary act.  “A ministerial duty may be established by evidence such as a written policy, an unwritten policy, a supervisor's specific directive, or a statute.” Roper v. Greenway, 294 Ga. 112, 114-115, 751 S.E.2d 351 (2013).  CCWA and Mulkey argued that there was no law, policy, or directive that required Mulkey to set out warning signs; it was solely within Mulkey's discretion whether to use the signs.  Generally, crew leaders take measure of the traffic flow and sight lines of potential drivers when deciding whether warning signs are necessary.  However, Mulkey testified that his supervisor had specifically directed him to use warning signs, and that the crew leader was responsible for making sure that the appropriate signs were out.  Therefore, the evidence showed that Mulkey had been given a specific directive by his supervisor and the execution of the directive was not up to Mulkey’s personal judgment or consideration.   As such, the Court held that the deployment of warning signs was a ministerial, not discretionary, act.

 

            The trial court held that because there was a large orange excavator in the road, Roberts could have avoided the consequences of any negligence attributable to Mulkey or CCWA. Roberts argued that she was not the sole proximate cause of the collision due to the visibility of the work site.  Under Georgia law, “[i]f the plaintiff by ordinary care could have avoided the consequences to himself [or herself] caused by the defendant's negligence, [the plaintiff] is not entitled to recover.” See O.C.G.A. § 51-11-7.  Other than in obvious, clear, and undisputed cases, “questions of negligence [and] proximate cause, including the related issue[ ] of ... lack of ordinary care in avoiding the consequences of another's negligence, ... are for the jury.” McCray v. FedEx Ground Package System, 291 Ga. App. 317, 322 (1), 661 S.E.2d 691 (2008).  The Court held that questions of fact remained as to the visibility of the work site due to shade from nearby trees and whether, as a consequence of Mulkey’s alleged negligence in failing to use warning signs, Roberts was not aware that she needed to adjust her speed.  Accordingly, the Court found that CCWA and Mulkey were not entitled to summary judgment on the merits.

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