*1 Wright Smith, Constangy, W. Willard, & Brooks K. Wendell appellants. Mitchell, for Christopher L. Samantha Norton, Porterfield, M. White
Busch appellee. Gunnison, BRYANT. v.
A14A1580. COOLEY (771 SE2d Ray, Judge. County Muscogee Prison, Bryant, inmate at
Jonathan assigned actively participating the Columbus crew on a work injured by Department a lawn he was when Recreation Parks and Cooley, against Bryant the correctional Michael filed suit mower. capacities, supervising and official crew, in his individual officer injuries filed a motion sustained. by against Bryant’s arguing barred him were claims Finding immunity. sovereign official the doctrines of capacity against Bryant’s were in his official claims granted immunity, sovereign the trial court doctrine of barred part. summary judgment However, the trial court motion Bryant’s summary judgment Cooley’s claims as to motion denied against personally. acts of found that The trial court him inspecting ministerial, maintaining not mower were the lawn against Bryant’s discretionary, him were not barred claims immunity. order court certified its The trial of official the doctrine Cooley’s petition granted review, this Court for immediate interlocutory court’s denial of affirm the trial review. We trial court for motion, the case to the but remand jury case, knew whether, the facts ofthis under determine dangerous presented defective and mower was the lawn repaired have the mower condition, that his ministerial such damages. liability trigger, so, issues related to and if all genuine proper Summary judgment no there is judgment the movant is entitled fact and issue ofmaterial grant appeal the denial or from matter of law. On as a summary judgment, appellate a de is to conduct court there determine whether the evidence to novo review genuine fact, and whether of material issue exists light undisputed favorable to most facts, viewed nonmoving party, of law. as a matter warrant Taylor Campbell, v. (Punctuation and footnotes omitted.) 801) (2013). 3, 2006, May Bryant, The record shows that an inmate at Prison, Muscogee County assigned an inmate work detail Columbus, directed grass Dinglewood where he was to cut Park Georgia. supervisor Cooley. The detail was Correctional Officer *2 for the responsible supervising during was the inmates work detail ensuring equipment they using opera- and for that the were was he the Cooley deposed inspected tional. that lawn mowers to ensure sharp. oil and If they gas anything that had and that the blades were Cooley he would deliver it repair, shop. needed to the maintenance inspect equipment again evening the after had been “clean, serviceable, used to sure ready make that was [and] day’s next work.” There no written procedure governing was Cooley’s inspections requiring inspect him to the for safety. day injury,
On the of his was to Bryant assigned the task mowing push mower, with three-wheel To start Bryant mower. the had to the spark plug pull connect and the crank. The mower’s lever had been disconnected at the time he that began morning. work This lever would have to normally keep to be held start and the mower running. Bryant stated that instructed him to make sure that spark the plug plugged when turned he the mower on and that should zip hold a tie attached spark pull to the to plug spark Further, out if plug he wanted to turn the off. flap mower the safety on the side mower where the grass missing. shoots out was Bryant explained also that he informed that the mower assigned surfaces, to him was meant for flat but that Cooley instructed hilly him to mow a area.
Cooley deposed that he had previous not experienced any main- mower, tenance with issues that and he had inspected that the mower the day Bryant’s injury and confirmed that it had not been changed However, altered or in any way. it was common for inmates hoping to avoid working “mess” the equipment. with Bryant deposed that it was “common that the knowledge” equipment given perform the inmates to their work duties was crap” “half and that guards did not seriously complaints consider from other inmates regarding equipment safety. issue,
On the date at finishing up inmate crew was their work the park at when Bryant’s Bryant pushed accident occurred. grass adjacent mower down a hill to cut as close ditch as his possible gained mower so much momentum that he was running almost stop escaping mower from his The grasp. hole, hit dug ground, flipped up three-wheeled mower into jump pushed tried to Bryant sideways. offto the side the mower grass portion leg shoots the mower where hit the clear, but his operate seriously injured. continued The mower out and was safety lever, which would during the mower’s because the event automatically situation, normally in such off the mower shut spark up pulled the inoperable ran inmate the time. Another stop plug the mower. out to individually against his official and in filed suit negligent inspection negligent of the
capacity maintenance judgment, arguing, filed a motion mower. capacity against were in his individual him alia, the claims inter that immunity. court denied The trial official the doctrine of barred against him Cooley’s as to the claims motion inspection finding of the personally, maintenance against Bryant’s claims was ministerial lawn mowers immunity. theory of official barred under were not review, this Court of immediate a certificate trial court issued finding interlocutory application granted review after order doctrine.1 it fell under the collateral denying erred in the trial court contends 1. *3 immunity official as to the issue of motion for inspection finding upon the lawn and maintenance of based discretionary. mowing ministerial, not qualified immunity, known as also of official The doctrine immunity, pro- employees public limited offers officers capacity. personal immu- Qualified suit in their tection from nity protects liability agents personal public from individual scope discretionary of their taken within the actions authority, malice, wilfulness, or and done without official corruption. employee public Georgia law, officer
Under negligently only may personally acts liable for ministerial be performed performed or an intent with malice or acts preserve immunity injure. is to for this The rationale 1 sovereign immunity, to stand trial rather immunity, “is an entitlement not like Official 363, omitted.) Taylor, supra (Citation punctuation n. 3. liability.” mere defense to than a immunity appealable denying Appeals claim is order such an “has held that an The Court of conclusively the order determines order because collateral order doctrine under the completely separate of the important from the merits question, disputed resolves an issue (Citation judgment.” appeal action, effectively from a final is unreviewable omitted.) Id.
public employee’s independence of action without fear of prevent lawsuits and to hindsight. a review of his or her (Citations omitted.) Pauley, (768 Williams v. 129, “ 546) (2015). immunity Official is an ‘entitlement not to stand ” liability.’ (Footnote omitted.) trial’ rather than a ‘mere defense to Lang, 341) (2001). Cameron v. Accord- ingly, as a correctional officer in the Parks and Recreation Division of Government, Columbus Consolidated is negligent performance
entitled to official discretionary scope authority acts within the of his as an may personally negligently per- officer; he be if liable formed a ministerial act or acted with actual malice or an injure performing discretionary intent to act. (Citations emphasis supplied.) supra. omitted; Williams, Because does not claim that acted with actual malice or an injure, alleged negligence intent to the issue is whether the involved discretionary or ministerial action. The difference between ministerial and acts explained commonly has been as A follows: ministerial act is simple, arising one absolute, definite, under proved requiring merely conditions admitted exist, specific duty. discretionary the execution of a the exercise of turn entails A act calls for personal deliberation and which in examining reaching facts, reasoned conclu- acting way specifically sions, and on them in a not directed. adequate Procedures or instructions to cause an act to merely become clear, must be so definite and merely require certain relatively the execution of a simple, specific duty.
(Footnote omitted.) Taylor, supra upon at 363-364. “Whether the acts *4 liability predicated which are ministerial or is deter- by particular (Citation mined omitted.) the facts of the case.” (1) (504 Akins, Parrish v. (1998).
Cooley deposed responsibility it that was his to make sure the equipment “operational; gas oil, make sure it; there’s in blades sharp.” deposed inspected equipment are daily He that he the twice ready day’s clean, make sure that serviceable, “it’s for the next repair, equipment piece he that needed did discover a work.” If he shop. City’s However, the maintenance take proce- policy testimony is no written “[t]here stated affidavit inspected[.]” governing was to be in the mower the manner which dure policy, unwritten, pointed written or of a to no evidence has safety inspections requiring manner. a certain to conduct Tony Adams, the director of the Columbus However, both agreed Department, there was an unwrit- Recreation Parks and duty Department policy officer has that a correctional ten shop required equipment the maintenance take defective maintenance. cursory of the lawn examination shows that
The evidence in need at issue was that the lawn mower have revealed mower would spark missing, grass repair: flap covering the shootout was plug mower, the lever meant to start the had to be connected operational, and in order to shut was not shut off the mower spark plug disengage blade, be removed had to mower off question zip fact as to contains a of a tie. The record also means Bryant deposed was aware of these issues: whether using zip off tie him to turn the lawn mower instructed Cooley deposed spark plug, the mower did attached to the kill switch. have a
Cooley argues inspection discre- of the lawn mower was that his governing policy procedure tionary how because there is no policy, inspections. in the absence of such a such Even conducted Cooley was aware that however, there is evidence in the record that safety features, and once he had several defects its lawn mower safety issues, there is evidence of an unwritten became aware of such requiring faulty mower to the mainte- him to take the machinery shop repairs. duty to the to take defective nance repairs clearly shop ministerial act. constitutes a maintenance simple: Department’s policy to deliver under the shop. defective to maintenance pertaining are in facts to official Where the relevant jury. dispute, Eshleman v. resolution of the factual issues is granted 926) (2014) (cert. Key, App. 883, September 8, § of whether OCGA 51-2-7 2014 to decide the issue off-duty police duty). Eshleman, canine In created a ministerial department-owned properly canine in the handler failed to secure playing got pickup truck, loose and bit a child and the canine back of nearby. to create a that there was evidence sufficient This Court held dangerous dog question to be the officerknew offact as to whether knowledge, then she was bound had such or vicious. If the officer *5 duty imposed by governing a ministerial gerous “vicious or a statute dan- keep dog properly Similarly, here, animals” restrained. by duty there is that evidence was bound a ministerial to take shop the lawn to the realized mower maintenance once he that it repair. question jury needed A be decided then fact to is this: knowledge did, fact, whether in that have mower was repair, defective and that the needed such ministerial to take repair for kicked in. opinion App. Gates, in 564-566,
This Court’s Glass v. (2) (716 supports holding. (2011), Glass, 574-576 our In an supervised during prison inmate was killed work detail presented depart- correctional Plaintiff officer. evidence ofunwritten policies requiring supervisor mental camp a detail to contact the work request and a service truck for assistance in the event a tractor got requiring ditch, stuck in and a laborer at least to be 50 feet operating behind an tractor at all times. The evidence showed that supervisor policies the defendant detail violated these unofficial attempt instructing the inmate to to remove a tractor stuck in injuries subsequently ditch, a during and the inmate died of sustained attempt. grant that This held Court that a light plaintiff’s because, was in error in of the evidence regarding departmental policies, question the unwritten there was a actually policy of fact as to whether there was and, established discretionary thus, whether the correctional officer’s act was Similarly, question here, ministerial. is a fact there as to whether repair, was aware that the lawn mower was in need of and if comply Department so, policy then he is bound to with the unwritten requiring complete delivering him to the ministerial act of the lawn shop repair. mower to the maintenance for kill dissent contends that if even knew that engaged disabled, switch was that he nonetheless in a failing shop repair. act in disagree. to take it to the maintenance We Adams,
Both and the director Parks and Department, agreed safety Recreation that once a lawn mower’s inoperable, kill switch is disconnected or rendered it becomes a dangerous piece machinery. jury Thus, if that concludes department policy defect, was aware of this then the unwritten merely complete simple is, dictated that task: that to take the shop repair. lawn mower to the maintenance Cooley’sremaining 2. is enumeration without merit. Judgment part Barnes, J., case remanded. P. affirmed fully specially. Doyle,
Branch, J., McFadden, J., concur. concurs judgment only. Boggs, J., Andrews, J., J., P. concurs in P. dissent. specially. concurring fully Judge, McFADDEN, separately opinion. majority fully I write I concur have properly cases that the line of explain falls into this case that specific task is characterized “recognized aof the execution accomplished left though it is in which the manner even Vickery, 216, 218 employee’s v. Golden discretion.” omitted). jury (citations 695) (2007) A issue the unwritten to conclude be authorized would required only Cooley inspect not to confirm safety failure operational admitted also for but was to duty. inspect that ministerial to execute a failure *6 dissenting. Presiding Judge, ANDREWS, requiring question case be that this no factual there is Because immunity issue, shows and the record on the official remanded immunity, Cooley I law, to official entitled, matter of as a was Officer respectfully dissent. County Muscogee prison Bryant, at the inmate a
Jonathan part voluntarily working injured of a crew of as while Prison, was supervi- power cutting grass under the lawn mower with a inmates employed by Cooley, the Colum- officer a correctional of Michael sion Cooley Bryant (CCG). to sued Officer Government bus Consolidated recover naming injury, damages a defendant Officer for his liability impose personal seeking capacity, on thus in individual his Bryant alleged injury. com- in his amended dangerous Officer injury plaint defective and caused that his Cooley’s supervision, used under Officer that he mower failing properly injury by Cooley negligently caused Officer inspect defects, the mower and have mower, discover the the lawn Asserting immu- repaired “official used. it safe before was to make nity” moved for claim, this Officer from motion, denied the not immune and ruled that he was the trial court grant pursuant Cooley appealed Court’s to this Officer interlocutory petition review. quali- immunity, also known as doctrine of official employees public immunity, limited officers offers
fied protection immunity protects personal capacity. Qualified in their from suit personal public agents from individual scope discretionary liability taken within actions authority, malice, wilfulness, done without their official or employee public Georgia corruption. law, officeror Under negligently only personally may acts for ministerial liable be performed performed intent malice or an with or acts
725 injure. immunity preserve The rationale for this public independence employee’s of action without fear prevent her lawsuits and to a review of his or hindsight. (549 341) Lang, (2001) (citations 122,
Cameron v. 274 Ga. 123 SE2d punctuation omitted); Richardson, 744, v. 264 750- Gilbert Ga. (452 476) (1994). employed by 753 SE2d As a correctional officer protected by CCG, Officer the doctrine of official immu- nity, may personally Bryant’s (a) only be liable held claim if: negligently performed (b) act, he acted with actual 125-126; injure. Phillips Cameron, or an malice intent to 274 atGa. (637 (2006). Hanse, 133, v. 281 Ga. SE2d claims that — negligently Officer Cooley acted he does not claim Officer injure. Accordingly, acted with actual malice or an intent to Officer was entitled to official from the asserted negligent performing discretionary act, claim if he was while even negligence disregard Bryant’s if that amounted a reckless safety. Bajjani, Murphy Cameron, 125-126; 197, Ga. at v. (647 54) (2007); Solomon, 203-204 Williams v. 734) (2000). presented It follows that the issue negli-
Officer motion for is whether the alleged gence involved or ministerial action. commonly simple,
A ministerial act is one that is abso- arising lute, proved definite, under conditions admitted or *7 requiring merely exist, to and the execution a of specific duty. A act calls the exercise personal deliberation and in which turn entails examining reaching facts, the conclusions, reasoned acting way specifically on them a not directed. Procedures adequate merely merely or instructions cause an to act to become clear, ministerial must be so definite and certain as require relatively simple, specific duty. the execution of a Happoldt, 741) (2004) Banks v. 271 Ga. (citations omitted). definition, Under this the record alleged negligence shows, discretionary law, as a matter the involved by Cooley. Officer action assigned Officer was to the CCG’sParks and Recreation Department, supervised prison (generally where he a crew of inmates eight inmates) performed they yard parks four while work on morning, go recreation areas. Each Officer would to the Muscogee up County pick Prison to inmates who volunteered serve supervision, day. the Under Officer crew that his work on equip- variety using yard grass work did other inmates cut power eaters, chainsaws, mowers, weed lawn ment, included which edgers. part Bryant injury, day was of Officer the of the On power using cutting grass a three-wheeled inmate crew and was depression Bryant ran into that one of the wheels testified mower. engine flipped ground, the on its side with over and the mower carrying spinning. running his momentum With and the blades still Bryant jump mower, over the mower tried to the him forward toward by spinning leg doing the was cut blades, so his the but to clear Bryant alleged conditions had two defective that the mower blades. injury. dangerous First, to his and contributed to use that rendered flipped over, the and it that, control of mower when he lost he claimed engine designed safety the switch, to shut down or kill which the under those engine operational, circumstances, was not spin Second, that a he claimed the blades. to run and continued grass flap guard deck, cut of the mower’s where on the side rubber Bryant, attempted According dispelled, missing. when he was to spinning leg jump mower, blades where his was cut over testimony Bryant gave flap also have been located. the rubber indicating operational, should kill switch was not knew the that Officer that, down the told him to shut because Officer cap manually pull engine spark plug. off the mower, he need to on the experienced contrary to the that he had testified Officer inspected problems issue; the mower at with no maintenance the mower morning it; had not used that the mower before year prior to the the been in use for about been altered since had designed injury; kill to be released that the mower had a switch necessary engine; operator disengage it was not to shut down the engine; spark plug that the down the to shut flap In deck had not been removed. the side of the mower’s rubber supervising crew, Officer the inmates on addition to equipment. responsibility for maintenance of about his testified any responsibility regarding you maintenance have Q: Do equipment? A: Yes. that be?
Q: What would operational. *8 Well, make it’s all A: sure you operational, you say you do it’s all make sure Q: When inspection? actually do an Yes,
A: sir. specific you mowers, Q: far would do an As inspection inspection you what would do as far as the or maintenance? Inspection. operational; all
A: Make sure it’s make sure sharp. gas oil, it; there’s blades are anything repaired Q: If needed to be worked on or on the you mower, do it?
No,A: sir. you repair?
Q: How would handle the shop. A: I would take down to our maintenance According Cooley, inspected equipment daily Officer twice (before work) clean, serviceable, and after sure it’s [and] “make ready day’s Additionally, Cooley gave for the next work.” Officer policy procedure “[t]here sworn statement governing no written or is inspected. the manner in which the mower was to be . . .” Department regard- The director ofthe Parks and testified Recreation ing question repair policy about unwritten as follows: piece policy equipment
Q: Is there if there’s a of that needs repaired? policy process to be Is there a about how is supposed get repair completed? be carried out to Normally equipment, you notify A: if it’s a vehicle or is your supervisor piece you got equipment of that’s you getting ready down, it to take Fleet Maintenance or engines large engines may small or whatever case be. you piece And take that down. hearing
Officer counsel conceded on the motion summary judgment that there was evidence in record that Officer knew the kill on the switch mower been had disabled. Based on evidence Officer kill knew the switch provided Bryant’s disabled use, when he the mower for opposition summary argued narrowed at the hearing Cooley negligently perform that Officer failed to a ministe- — repaired rial to take mower out of have it service and giving grass. agreed, before it to him to cut The trial court found evidence that disabled, Officer the kill knew switch was denied Officer motion for on the basis alleged negligence that this ministerial in nature.
“The determination of whether action is depends specific on the character actions com- plained general job, of, not the nature to he made on a case-by-case Effingham County Commrs., basis.” Davis v. Bd. *9 punctuation (2014) (citation 9) (760 579, SE2d 584-585 Ga. omitted). equipment taking to have out of service The mere fact simple it a ministerial repaired does not make act and definite is a of a in ‘the execution be done ministerial, the act “must act; to be 922) (678 duty’McDowell 592, SE2d specific Smith, 593 285 Ga. v. (2013). (751 Greenway, Roper 112, SE2d (2009).” 114 v. may duty Accordingly, evidence be established “[a] ministerial supervisor’s policy, policy, [or] an unwritten a written such as specific omitted). “[pro- (citations But Id. at 114-115 directive. . . .” adequate policy to cause directive] or [in a or instructions cedures merely certain clear, definite and must be so become act to simple, specific relatively require merely of a the execution to omitted). punctuation (citation duty.” As to Officer Id. at 115 repaired, equipment duty Cooley’s no written there was to have policy policy, directive which or of an unwritten and no evidence Cooley duty by requiring “to take Officer a ministerial established specified (citation specified 115, 2 Id. at n. situation.” in a action only omitted). of a Rather, evidence is the existence got piece repaired you equipment policy get of general “when to repairs equipment make the are needed to down,” or when that’s ready.” “operational” equipment This evidence or “serviceable Cooley duty required discretionary repair Officer which established a judgment personal reasoned to reach deliberation and exercise to conclusions capable equipment, piece was still of which about when a yard being operated get done, be taken should nevertheless work of out safety component particular or mechanical of service to have judgment Cooley’s repaired. is inherent exercise of Id. at 116. Officer assigned yard duty get priorities assigning work between provided, equipment reasonably maintain the and the need to done with working Parrish v. State condition. in a safe of 834) (1999) (correctional officer’s Ga., 879 Ga. prisoner supervision detail were of work actions in choosing “required to exercise because the officerwas responsibilities”). priority policy, assigned There was no be to ... diverse to take unwritten, directed Officer which written responsibili- specified specified these to handle in a situation action ties. jury to resolve to remand this case
There is no need
aware)
(or
been
should have
was aware
whether or not Officer
flap
disabled,
the rubber
on
or that
kill switch was
that the mower’s
assuming (as
parties
missing.
trial
and the
deck
Even
was
knowledge,
did)
this
had
showed Officer
court
that evidence
estab-
directive which
was no
that there
the record shows
the mower
to take
had a ministerial
that Officer
lished
repaired.
record,
service
have it
On
out of
this
issue
Officer
was entitled to official
was
whether
one
Although
Cameron,
for the trial
I am authorized to state that in this dissent. *10 Decided March
Page, Sprouse, Scrantom, Ford, Clark, Jr., & Tucker James C. for appellant. appellee. Casto, Casto,
Bennett & Mark A. ROUMELCO,
A14A1598. McELVANEYv. et LLC al. Judge.
Branch, McElvaney brings appeal Plaintiff Sean this from trial grant summary court’s Roumelco, to defendants LLC principal, (collectively, “Roumelco”), and its Constantine Roumel McElvaney’s concerning suit breach of contract his investment of nearly $300,000 in Roumelco and its Atlanta réal estate venture. McElvaney trial court held failed Roumelco to reach a sufficiently agreement McElvaney’s ownership definite as to interest company McElvaney proceed unjust but that could on his appeal, McElvaney argues genuine ques- enrichment claim. On tions material fact remain as that the trial court his it breach of contract claim and request appoint erred
also when denied agree receiver Roumelco. Because we with first of these grant contentions, Roumelco, we reverse the McElvaney’s receiver, vacate the denial motion for a and remand