A16A0224, A16A0225. GRANT et al. v. GEORGIA FORESTRY COMMISSION et al. (two cases).
A16A0224, A16A0225
Court of Appeals of Georgia
DECIDED JULY 14, 2016
789 SE2d 343
McMILLIAN, Judge.
Jones, Osteen & Jones, Billy N. Jones, Carl R. Varnedoe, for appellants. Samuel S. Olens, Attorney General, Robert L. Bunner, Senior Assistant Attorney General, for appellees.
In these related cases, Carol Grant1 (“Grant“) brought wrongful death actions against the Georgia Forestry Commission (“GFC“) and the Georgia Department of Transportation (“GDOT“) arising out of an automobile collision that resulted in the death of Grant‘s husband, Myles N. Grant, and her son, Joell D. Grant. Grant appeals the trial court‘s dismissal of GFC and GDOT on the grounds that the doctrine of sovereign immunity bars her claims.
The facts are largely undisputed. At approximately 5:30 a.m. or 5:50 a.m.,2 on March 17, 2011, Grant‘s husband and son were killed in an automobile accident on Interstate 16 (“I-16“) when they collided with a tractor-trailer (the “Accident“). At the time, there was little to no visibility on the interstate due to a combination of smoke and fog.
On the day before the Accident, GFC had issued an online burn permit to Grantley Stewart to burn vegetation on his property in Bulloch County, Georgia. At approximately 3:30 p.m. that day, Douglas Chassereau, chief ranger for the Bulloch County GFC fire protection unit, received notice of a fire on Stewart‘s property, and when he arrived at the property approximately 45 minutes later, he observed a fire burning out of control in an area of forested land and threatening to burn a number of structures. Because forest fires fall within GFC‘s jurisdiction, Chassereau “took charge” of the fire scene, and he “continuously monitored the fire and assigned manpower and equipment to contain the fire.” As a part of his duties, Chassereau drove State Route (“SR“) 67, which was located several hundred feet north of the fire, where he observed that Bulloch County Sheriff deputies were handling traffic issues and that smoke/fog warning signs for both travel lanes on SR 67 had been posted.
At around 7:00 that evening, Chassereau determined that the fire appeared to be contained;
GDOT also received notice of the fire on March 16 when the Bulloch County Sheriff‘s Office called to request that smoke warning signs be posted on SR 67. Joseph Mixon, GDOT‘s maintenance foreman for Bulloch County, responded to the scene between 4:30 and 5:00 p.m. At the time, GDOT Policy 6670-3 (the “GDOT Policy“) required Mixon in his capacity as maintenance foreman to respond to requests from local law enforcement to place fog/smoke warning signs on state roads. Although Mixon observed no existing visibility issues, he complied with the request of the sheriff‘s office to place warning signs in both directions on the roadway at around 5:00 p.m. When Mixon returned to the scene at around 7:45 p.m. to check the visibility, he found the conditions clear. After calling the sheriff‘s office regarding the signs, Mixon left the signs in place overnight at their request.
The next day, March 17, Chassereau left his house at 5:30 a.m. to return to the burned area and on the way, at around 6:09 a.m., he received a report of the Accident. When he arrived at the scene a few minutes later, he observed that the area was enveloped in dense fog and smoke, resulting “in near zero visibility,” although he had no trouble breathing in the fog, indicating that it did not contain enough smoke to compromise his breathing or to cause him to experience other smoke-related symptoms.
Also, around 5:30 a.m. on March 17, Mixon received a call from GDOT‘s Transportation Management Center (“TMC“) indicating that law enforcement had asked that warning signs be placed on I-16. That was the first notice he received of visibility issues on I-16. A few minutes later, TMC called him to report that I-16 had been closed due to the Accident and that law enforcement was asking for assistance in setting up a detour for the eastbound lane of the interstate. Mixon notified his immediate supervisor of these events. They then coordinated notifying additional GDOT personnel to pick up the necessary signage and to bring it to the appropriate interchange on I-16. When Mixon arrived at the interstate that morning, he observed that “fog and smoke had accumulated to such a degree over I-16 that [he] could not see through [his] windshield beyond the front hood of [his] truck.”
After the extended discovery period had ended, GFC and GDOT filed motions to dismiss Grant‘s claims pursuant to
1. On appeal, Grant asserts that the trial court erred in granting the motions to dismiss because sovereign immunity had been waived under the Georgia Tort Claims Act (“GTCA“),
In reviewing an assertion of sovereign immunity, we must keep in mind that sovereign immunity is not an affirmative defense but instead raises an issue as to the
Moreover, where a motion to dismiss asserting the protection of sovereign immunity is filed pursuant to
2. We turn first to Grant‘s claims against GFC. In her complaints, Grant asserted that GFC was negligent in (1) failing to notify other governmental agencies of the potentially hazardous conditions caused by the fire; and (2) failing to coordinate with GDOT to put signs in place to warn the public of these potentially hazardous conditions. In support of its motions to dismiss, GFC argued that it was entitled to sovereign immunity because its actions fell within the exception to the waiver of sovereign immunity set out in
as authorizing the application of sovereign immunity to the making of policy decisions by state employees and officers including those relating to the amount, disbursement, and use of equipment and personnel to provide law enforcement, police or fire protection services, and to the acts and omissions of state employees and officers executing and implementing those policies.
Ga. Forestry Comm. v. Canady, 280 Ga. 825, 830 (632 SE2d 105) (2006). The Supreme Court later clarified this holding by explaining that “[t]he state is immune from liability if the alleged negligence causing an injury, which injury occurs during implementation of policy, lies in some defect in the policy itself.” Ga. Dept. of Public Safety v. Davis, 285 Ga. 203, 206 (676 SE2d 1) (2009). However, “[t]he state is not immune from liability where its employee is implementing a non-defective policy, but does so in a negligent manner.” Id. Moreover, “[a]lthough the state may be immune from liability for negligence in creating a certain policy which causes injury during its implementation, such immunity is unavailable for an employee‘s allegedly negligent act or omission which is not authorized by any policy.” Id.
The parties do not dispute that the policy applicable to GFC‘s actions was contained in a Memorandum of Agreement dated August 15, 2005 (the “Agreement“), in which three state agencies — GFC, GDOT, and GSP — agreed to a chart setting out “Action Procedures for Reduced-Visibility Driving Situations on State Roads.” Grant does not allege that these policies were defective, but instead claims that GFC was negligent in implementing them.
In addressing the issue of whether GFC and Chassereau were negligent in implementing the applicable policies in the Agreement, we must consider the division of responsibility to which the three participating agencies agreed. Under the Agreement, GFC
Turning first to the claim that GFC negligently failed to notify GSP of potentially hazardous conditions, after reviewing the plain language of the Agreement, we agree with the trial court that GFC has the duty to report only existing limited visibility conditions. Nothing in the Agreement imposes a duty upon GFC to report conditions with the potential to cause future visibility problems. Rather, the Agreement charges GSP with responsibility for monitoring the area surrounding large controlled burns or wildfires, as resources allow, to detect potential problems. Here, the evidence is undisputed that GFC did not become aware of any limited visibility conditions on I-16 until the Accident had already taken place, and thus GFC cannot be said to have negligently implemented its policies. As a result, GFC is protected by sovereign immunity as to such claims.
Likewise, Grant‘s claim that GFC negligently violated its duty to coordinate with GDOT in the placement of signs is barred by the doctrine of sovereign immunity. Under the Agreement, this duty to coordinate with GDOT arises only in the case of existing limited visibility conditions, as the description of that duty immediately follows the description of GFC‘s duty to report such conditions (with no line spacing). In contrast, GFC‘s duty to report large controlled burns and wildfires appears separately and below the instructions for limited visibility conditions. Because the evidence amply supports the trial court‘s finding that GFC did not become aware of the limited visibility conditions until the early morning hours around the time that the Accident occurred, any claims based on the purported breach of GFC‘s duty to coordinate with GDOT is entitled to the protection of sovereign immunity.
However, as previously noted, the Agreement imposes a separate and independent duty on GFC, regardless of visibility conditions, to advise GSP of the existence of any large controlled burns or wildfires in the vicinity of state roadways. Thus, we disagree with the trial court‘s conclusion that limited visibility conditions were required to trigger any duty on the part of GFC under the Agreement. Although GFC initially permitted the fire as a presumably smaller controlled burn,5 it grew into an uncontrolled
The Agreement does not specify the method for advising GSP of large controlled burns or wildfires, but it clearly requires that GSP be so advised by GFC. Although the trial court found that Chassereau complied with this notification requirement by calling the county 911 operator, we disagree with the trial court‘s application of the law to the undisputed facts. Evidence that GFC delegated its duty to advise GSP to the county 911 operator, without more, is insufficient to show that GFC carried out its duty, particularly in the absence of evidence in the record that GSP received any notice of the fire, which would then trigger GSP‘s duty under the Agreement to monitor the situation as resources permitted. See Davis, 285 Ga. at 206 (sovereign immunity not available for an employee‘s negligent omission which is not authorized by any policy). Accordingly, the trial court erred in finding on the existing record that GFC was not negligent in carrying out its duty to advise GSP of the fire and that it was entitled to sovereign immunity on Grant‘s claim on this ground.7
3. Turning to Grant‘s claims against GDOT, Grant alleged in her complaints that GDOT was negligent in (1) failing to monitor I-16 for potentially hazardous conditions caused by the fire; (2) failing to assess the hazard posed by the fire in order to develop appropriate traffic control strategies; and (3) failing to warn motorists of the hazards and dangers posed by the smoke and coordinate with GFC to put signs in place to warn the public of these potentially hazardous conditions. In its motions to dismiss, GDOT asserted that it was entitled to sovereign immunity because its actions fell within the exceptions to the waiver of sovereign immunity set out in
As an initial matter, we must consider Grant‘s contention that subsection (6) does not apply to GDOT because it is not ” ‘a law enforcement or fire protection agency.’ ” But the protections afforded by that provision are not limited to law enforcement or fire protection agencies. Rather, that subsection grants sovereign immunity to the State as to claims for losses resulting from “the failure to provide, or the method of providing, law enforcement, police, or fire protection.”
Therefore, to the extent that the Agreement addresses limited sight visibility resulting from smoke caused by fires, it represents a policy decision among three state agencies regarding a method of providing fire protection. Similarly, the GDOT Policy, which incorporates and expands on the Agreement, represents a policy decision by that department regarding its role in providing fire protection in such situations. Because GDOT has assumed duties in providing fire protection under the Agreement and its own policy, we find that GDOT may avail itself of the protections provided under subsection (6) for its acts and/or omissions in connection with the fire in this case.
In order to determine whether sovereign immunity bars Grant‘s claims, we must examine GDOT‘s duties in the event of low visibility due to smoke from a fire. Under the Agreement, GDOT‘s responsibility to place signage arises only after it receives notification.9 Although the Agreement does not specify the source of the notification triggering this duty, the GDOT Policy contemplates that notice may come from two sources — the GSP and other sources — which in turn requires different responses by GDOT. If GDOT receives notice from a source other than GSP about limited visibility conditions due to smoke, smog, or fog, GDOT is directed to “immediately contact the GSP to verify the reports and request their assistance in apprising the severity of the problem and the impact on highway safety.” Alternatively, if GDOT is notified by GSP of limited visibility conditions threatening the safety of the traveling public (presumably in the first instance or after GDOT had already notified GSP upon receiving information from another source), the GDOT Policy provides for a more in-depth response, including considering whether to place signage or warning lights at the scene.10
It is clear from our review of the Agreement and the GDOT Policy that Grant‘s claims for failing to monitor I-16 for hazardous conditions is barred under the doctrine of sovereign immunity because neither policy imposes any duty on GDOT to monitor roadways for hazardous conditions. Because Grant‘s negligence claim “lies in some defect in the policy itself,” i.e., that the policies should have imposed a duty on GDOT to monitor roadways for hazards, GDOT is immune from liability for any such claims. See Davis, 285 Ga. at 206.
Grant‘s claims that GDOT failed to assess the hazard posed by the fire and failed to place signs to warn the motoring public are barred for a similar reason. The only evidence of record indicates that on the
In so holding, we recognize that, as Grant argues, GDOT may not have complied with its own policy on the day before the Accident when the Bulloch County Sheriff‘s Office requested GDOT to place signs on SR 67 as there is no evidence in the record as to whether GDOT ever contacted GSP to assess the situation. However, we fail to see how Grant‘s losses resulted from any failure to implement that policy as contemplated by
We find, therefore, that Grant has failed to show any negligence on the part of GDOT in implementing its own policies and thus, she has failed to carry her burden of establishing a waiver of sovereign immunity as to her claims against GDOT. As a result, we affirm the trial court‘s grant of GDOT‘s motion to dismiss Grant‘s claims pursuant to the “right for any reason” rule. See Bobick v. Community & Southern Bank, 321 Ga. App. 855, 870 (4) (b) (743 SE2d 518) (2013) (grant of a motion to dismiss will be affirmed if right for any reason).
4. Finally, we consider whether the discretionary function exception found in
Although GFC never argued until appeal that it was protected by sovereign immunity under subsection (2), the trial court nevertheless held that the exception under subsection (2) applied because it found “the situation in the instant case concerning GFC to be more like [that] contained [in Ga. Dept. of Human Svcs. v. Spruill, 294 Ga. 100 (751 SE2d 315) (2013)]” than in Davis, on which Grant relied. We note, however, that although in Spruill, the Supreme Court considered and applied subsection (2), 294 Ga. at 105-106 (2), in Davis, the Court construed the application of only subsection (6) to the facts in that case and did not address the applicability of subsection (2). 285 Ga. at 204-207. The trial court never undertook to determine whether Chassereau‘s choice in delegating the duty to advise GSP to the county 911 dispatcher required the exercise of “a policy judgment in choosing among various alternative actions based on social, political, and economic factors” as required under
Nevertheless, even if we were to apply the proper test on de novo review, we find that the existing record lacks evidence upon which to base such a determination. GFC did not assert the applicability of subsection (2) below, and Grant did not have the opportunity to present evidence and argument in opposition. Therefore, the record is undeveloped as to the factors that may or may not have gone into Chassereau‘s decision to delegate to the county 911 dispatcher GFC‘s duty to advise GSP of the Stewart fire. Accordingly, we find that the trial court erred in granting GFC‘s motion to dismiss under subsection (2) on the existing record.
Judgments affirmed in part and reversed in part. McFadden, J., concurs. Miller, P. J., concurs fully in Divisions 1, 2 and 4 and in judgment only in Division 3.
DECIDED JULY 14, 2016
Jones, Osteen & Jones, Billy N. Jones, Carl R. Varnedoe, for appellants.
Samuel S. Olens, Attorney General, Robert L. Bunner, Senior Assistant Attorney General, for appellees.
Notes
Report to the nearest Georgia State headquarters the existence of limited visibility conditions and location.
Coordinate with DOT officials to insure that signs are properly posted.
Advise the Georgia State Patrol of the existence of large control burns or wildfires in the vicinity of state roadways.
(spacing in original document). In addition, the Agreement notes that “Fog is generally so widespread that it would be logically impossible to address; however, an isolated patch of fog with sufficient density, to severely restrict or prevent passage through it, should be treated the same as smoke, smog, etc.”- 6. When reports of threats to the safety of the traveling public are verified from either the GSP, or the Department‘s own surveillance by maintenance or other personnel, a response will be triggered and comprised of the following:
- The Area Engineer or their designee will visit the site and determine the appropriate traffic control strategy to be developed for the incident.
- The District Traffic Operations Engineer shall assist in the selection of strategy or assessment of needs, upon request.
- The traffic control strategy for consideration shall include, but not be limited to, any one or more of the following:
- Closing the road entirely
- Using alternative routes
- Deploying pilot car techniques
- Displaying advance signage and/or warning lights
- Narrowing the road to a single lane approach
- Notifying the local media
- Other actions.
- The [TMC] in Atlanta should be notified of any verified smoke, smog and/or fog incidents. Include the county, location and traffic control strategies being employed when making notifications.