ROBERTS Et Al. v. MULKEY Et Al.

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 31, 2017

In the Court of Appeals of Georgia
A17A1324. ROBERTS et al. v. MULKEY et al.

ELLINGTON, Presiding Judge.

Tracey Roberts and her husband were injured when the van she was driving

collided with a pile of dirt and then an excavator at a Carroll County Water Authority

(CCWA) work site. Roberts, individually and as temporary administrator of her

husband’s estate,1 filed this personal injury action in the State Court of Carroll

County against CCWA and Henry Junior Mulkey, a CCWA employee, in his

individual capacity. The trial court granted summary judgment to Mulkey on the basis

of official immunity and CCWA on the basis of sovereign immunity and dismissed

Roberts’s complaint with prejudice. In an alternate holding, the trial court found that

1
Roberts does not contend that her husband died due to injuries he received
during the collision.
even if Mulkey and CCWA were not immune from suit, they were entitled to

summary judgment on the merits. On appeal, Roberts contends that the trial court

erred (i) in finding that her claims against Mulkey were barred by official immunity,

(ii) in dismissing her claims against CCWA on the grounds of sovereign immunity

when that issue was not raised in the motion for summary judgment, and (iii) in

finding that she was sole proximate cause of the collision and subsequent injuries. For

the reasons set forth below, we reverse in part and vacate in part.

Under OCGA § 9-11-56 (c),

[s]ummary judgment is warranted if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. We
review the grant or denial of a motion for summary judgment de novo,
and we view the evidence, and the reasonable inferences drawn
therefrom, in a light most favorable to the nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475,

475-476 (759 SE2d 557) (2014).

So viewed, the evidence shows that on June 29, 2012, crew leader Mulkey and

two other CCWA employees were assigned to fix a water leak in an underground pipe

located on the side of Hog Liver Road in Carroll County. At the work site, Mulkey

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parked an orange mini-excavator, also known as a “track hoe,” with one track on and

one track off of the rural two-lane road. He then used the track hoe to dig a hole by

the side of the road so the other members of the crew could access the leaking pipe,

and he also dug a service ditch from the pipe to the water meter. Mulkey placed the

excavated dirt onto the road such that vehicles traveling east on Hog Liver Road

would first encounter the pile of dirt and then the mini-excavator. The crew took less

than an hour to repair the pipe. During the course of filling the hole back up, Mulkey

realized that no warning signs or traffic cones had been placed on the road ahead of

the dirt pile and track hoe blocking the lane of travel.

While Mulkey and his crew were working, Roberts left her home around noon

and began driving her mini-van east on Hog Liver Road. Her husband was in the

passenger’s seat, and the van’s radio was playing. The weather was clear, the road

was dry, and Roberts was driving approximately 35 mph. According to Roberts, she

saw a “blur.” Roberts swerved left, but was unable to avoid the track hoe. Mulkey

testified that he saw Roberts’s van hit the dirt pile, then the track hoe, after which the

van turned over on its side. Roberts and her husband were injured in the collision.

Other than Roberts’s vehicle, Mulkey could not recall any traffic coming through the

work site.

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 1. Roberts contends that the trial court erred in finding that her claims against

Mulkey were barred by official immunity. She argues that Mulkey’s failure to

perform a ministerial act, specifically placing advance warning signs to alert

motorists at any CCWA work site, is not shielded by official immunity. “The issue

of [Mulkey’s] immunity is a question of law and is reviewed de novo.” (Citation

omitted.) Pearce v. Tucker, 299 Ga. 224, 227 (787 SE2d 749) (2016).

Official immunity generally applies “to government officials and employees

sued in their individual capacities.” (Citation and punctuation omitted.) Glass v.

Gates, 311 Ga. App. 563, 574 (2) (716 SE2d 611) (2011). Under that doctrine, a

public officer or employee “may not be held liable for his discretionary acts unless

such acts are wilful, wanton, or outside the scope of his authority.” (Citation omitted.)

Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994).2 However, there

is “no immunity for ministerial acts negligently performed or for ministerial or

discretionary acts performed with malice or an intent to injure.” Id. at 753 (6). Thus,

“[a] public officer or employee may be personally liable for ministerial acts

negligently performed, or for ministerial acts he or she negligently failed to perform.”

2
“The doctrine of official immunity has now been incorporated into the state
constitution. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX.” Austin v. Clark, 294 Ga.
773, 774 n. 2 (755 SE2d 796) (2014).

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(Citations omitted.) Boatright v. Copeland, 336 Ga. App. 107, 108 (783 SE2d 695)

(2016).

It is undisputed that Mulkey did not act with malice or intent to injure when he

failed to place warning signs at the Hog Liver Road work site; accordingly, at issue

is whether the act of placing warning signs was a ministerial or discretionary act.

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.

(Citation and punctuation omitted.) Common Cause/Georgia v. City of Atlanta, 279

Ga. 480, 482 (2) (614 SE2d 761) (2005). See Pearce v. Tucker, 299 Ga. at 227

(accord). Instructions or procedures sufficient “to cause an act to become merely

ministerial must be so clear, definite and certain as merely to require the execution

of a relatively simple, specific duty.” (Punctuation and footnote omitted.) Barnard v.

Turner County, 306 Ga. App. 235, 238 (1) (701 SE2d 859) (2010). “A ministerial

duty may be established by evidence such as a written policy, an unwritten policy, a

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supervisor’s specific directive, or a statute.” (Citations omitted; emphasis supplied.)

Roper v. Greenway, 294 Ga. 112, 114-115 (751 SE2d 351) (2013).

The evidence shows that CCWA did not, at the time of June 29, 2012 collision,

have a written traffic control policy. Rather, according to Jared Hopson, a CCWA

field superintendent, the crew leaders knew what signs to put out at a work zone from

“on-the-job” training. On the day of the collision, no one told Mulkey to put out

warning signs.

CCWA and Mulkey contend that, in the absence of any law, policy, or directive

requiring to Mulkey to deploy warning signs at the work site on Hog Liver Road, it

was within Mulkey’s discretion whether to use the signs. Particularly, they contend

that the decision to use warning signs or cones required CCWA crew chiefs, like

Mulkey, to take measure of the traffic flow and sight lines of potential drivers that

might travel through the work zone. However, a trier of fact could conclude that

Mulkey’s supervisor had specifically directed him to deploy warning signs at all

CCWA work sites. Mulkey testified that Hopson had repeatedly told him before the

collision that he was supposed to put out warning signs at CCWA work sites. Mulkey

also agreed that the crew leader was responsible for making sure that the appropriate

signs were out, and he testified in that respect as follows:

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 Q: And as far as putting out the signs, that’s something that you know
is something you need to do at every work site; correct?

A: Yes, sir.

Q: That you don’t need really need to think about it; you just need to get
them out there. Correct?

A: Yes, sir.

In his testimony, Hopson agreed that “even with a straightaway [road], low volume

[traffic], [Mulkey] needed to have signs out there . . . [a]nd . . . that’s the rule he was

expected to follow[.]” Thus, even if Mulkey was not given instructions as to how to

conduct the work site at Hog Liver Road, in particular, the evidence shows that

Mulkey had been instructed by his supervisor to take a specific action (deploy

warning signs) in a specific situation (at a CCWA work site), and that the execution

of such directive was not a matter of personal judgment or consideration.

The evidence, if viewed in a light most favorable to Roberts, shows that

Hopson’s instruction to Mulkey to deploy warning signs at CCWA work sites was

clear, definite, and certain, and required the execution of a relatively simple, specific

duty, such that the deployment of warning signs was a ministerial act. See Glass v.

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Gates, 311 Ga. App. at 575-576 (2) (evidence that an unwritten departmental policy

required a work detail supervisor to call the work camp and request a service truck

when a tractor became stuck showed that the defendant was required to take a

specified action in a specified situation and constituted evidence of a ministerial

duty); Joyce v. Arsdale, 196 Ga. App. 95, 97 (395 SE2d 275) (1990) (road

superintendent’s actions in barricading a bridge were ministerial where county

commission directed him to close the bridge). It follows that the trial court erred in

granting summary judgment to Mulkey on the basis of official immunity. See Glass,

311 Ga. App. at 575-576 (2) (if relevant facts pertaining to immunity are in dispute,

the trial court is without authority to resolve those factual issues on a motion for

summary judgment).

2. Roberts further contends that the trial court erred in dismissing her claims

on the basis of CCWA’s sovereign immunity when the only issue of immunity raised

on summary judgment was Mulkey’s official immunity. Mulkey and CCWA

acknowledge that in their motion for summary judgment Mulkey raised the issue of

his official immunity but CCWA did not raise the issue of its sovereign immunity.

In its order, the trial court initially considered whether “the Defendants” had

official immunity, which “would bar [Roberts’s] action against them.”

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Notwithstanding that the trial court’s order may imply that Mulkey’s official

immunity would bar Roberts’s claims against both Mulkey and CCWA, “the official

immunity of a public employee does not protect a governmental entity from liability

under the doctrine of respondeat superior. A county may be liable for a county

employee’s negligence in performing an official function to the extent the county has

waived sovereign immunity.” (Citations omitted.) Gilbert v. Richardson, 264 Ga. at

754 (7) (where county sheriff was sued for damages arising from a collision between

the plaintiff and a sheriff’s employee, the sheriff could not claim the benefit of his

employee’s official immunity defense; and while the sheriff was entitled to the benefit

of the county’s sovereign immunity defense because he was sued in his official

capacity, the county had waived its sovereign immunity to the extent of its liability

insurance coverage). Thus, the trial court erred to the extent that it determined that,

because it had found that Mulkey was entitled to official immunity, that finding

required the grant of summary judgment to CCWA as well.

The trial court did not discuss in its order whether the evidence showed that

CCWA’s sovereign immunity had been waived, but found that no issue of waiver was

suggested by the pleadings or record, and that, in the absence of waiver, CCWA was

entitled to sovereign immunity. After concluding that Mulkey was entitled to official

9
immunity, the trial court then granted summary judgment to both CCWA and Mulkey

“on the issues of sovereign and official immunity.” To the extent the trial court

granted summary judgment to CCWA on the basis of its sovereign immunity, CCWA

did not move for summary judgment on this ground and the trial court’s ruling on the

issue was sua sponte.

Although a trial court may, sua sponte, grant summary judgment on an
issue not raised by the parties, in so doing the trial court must ensure
that the party against whom summary judgment is rendered is given full
and fair notice and opportunity to respond prior to entry of summary
judgment.

(Citation and punctuation omitted.) Thomas v. Tenet Healthsystem GB, Inc., 340 Ga.

App. 78, 82 92) (796 SE2d 307) (2017). See Hodge v. SADA Enterprises, Inc., 217

Ga. App. 688, 690 (1) (458 SE2d 876) (1995) (accord). The record does not show that

the trial court afforded Roberts with notice and opportunity to respond to the issue of

whether CCWA had waived sovereign immunity. We therefore vacate the trial court’s

order to the extent that it grants summary judgment to CCWA on the basis of

sovereign immunity and reverse the dismissal of Roberts’s complaint.

3. Lastly, we consider the trial court’s ruling that, if not immune to suit,

Mulkey and CCWA were entitled to summary judgment on the merits. In that respect,

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Roberts contends that the trial court erred in finding, as a matter of law, that she was

the sole proximate cause of the collision. 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.” OCGA § 51-11-

7. The trial court concluded that, because there was large orange object in the

roadway, Roberts could have avoided the consequences of any negligence attributable

to Mulkey or CCWA.

The evidence shows that the track hoe was located on a straightaway, near the

top portion of a rise in the road, and that there was a quarter-mile sight distance to the

work site for drivers proceeding eastbound. According to Roberts, she was driving

when she suddenly saw a “blur” which she swerved to avoid, and which appeared to

be “coming up out of the ditch.” She offered no explanation for why she did not see

the track hoe, only “I just did not see it.”

Mulkey and the CCWA posit that the reason Roberts did not see the dirt pile

and the track hoe was that she had not maintained a diligent lookout ahead, and that

she could and should have seen, and then avoided, the obstruction in the road by the

exercise of due care. The evidence does not, however, require a trier of fact to reach

that conclusion. The collision occurred on a partially shaded rural road at

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approximately high noon. According to Sergeant James Warren, the Georgia State

Patrol trooper who investigated the collision, there were trees shading the roadway

which “would definitely be a vision obscurity” for a driver on Hog Liver Road. In his

opinion, “as you’re going from shade to sunlight, from shade to sunlight . . . that’s

changing your vision.” Without any signs advising a driver of road work ahead,

Warren testified, there was no warning to a driver that “[she] need[s] to start slowing

down.” Warren maintained that, “in [his] professional opinion, there was a possibility

that [Roberts] did not see the [track hoe] until the last minute.” Additionally, there

was not simply an orange track hoe blocking the road. The track hoe was parked

partially on and partially off of the road, and between the track hoe and an eastbound

driver, who would have approached the work site from below, was a pile of dirt.

Other than in plain, palpable, 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.” (Punctuation

and footnote omitted.) McCray v. FedEx Ground Package System, 291 Ga. App. 317,

322 (1) (661 SE2d 691) (2008). Here, there remain questions of fact as to the

visibility of the work site to an eastbound driver, and whether, as a consequence of

the alleged negligence in failing to deploy warning signs, Roberts was not apprised

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of a need to reduce her speed, both of which could have contributed to Roberts

having failed to see the obstruction in the road before a collision became unavoidable.

As Mulkey and CCWA point out, this Court has found that a driver who

“plough[ed] headlong at an unabated speed into a clearly visible obstruction” was the

author of his own misfortune. Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351, 356

(94 SE2d 612) (1956). In that case, however, the complaint showed that the decedent

drove for 100 feet on accumulated loose dirt on the street which caused the right side

of his truck to ride higher than the left, and that the loose dirt caused him to skid into

a dirt pile. Id. Under those facts, the driver “was absolutely aware of the presence of

the accumulated dirt” and could have avoided the obstruction in the exercise of

ordinary prudence. Id. Here, viewing the evidence in a light most favorable to

Roberts, she was not actually aware of the dirt pile and excavator until moments

before the collision, and she was not put on advance notice by having physically

driven over dirt from the work site. Mulkey and CCWA also assert that if conditions

were such that Roberts could not see the orange excavator, then it was her duty to

stop driving or slow to a safe speed. However, if Roberts’s vision was affected by the

alternating light and shadow described by Warren, it does not necessarily follow that

she chose to drive while blinded or unable to see, and a trier of fact would not be

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required to conclude that her failure to reduce her speed below 35 mph caused the

collision. See Brown v. Tucker, 337 Ga. App. 704, 722-732 (9) (788 SE2d 810)

(2016) (where driver collided with a tractor trailer parked by the side of the road, and

the sun was in her eyes as she was driving, causing her to squint and making it

difficult to see the trailer, but she was not blinded the entire time she was on the road,

the evidence did not demand the finding that she was the sole proximate cause of the

collision). Compare Brown v. Atlanta Gas Light Co., 96 Ga. App. 771, 775-776 (1)

(101 SE2d 603) (1957) (construing the pleadings most strongly against the plaintiff,

which was then required for purposes of a demurrer, the petition showed that after

being blinded by the sun the decedent could not see his way ahead yet made no effort

to bring his truck to a stop, and he thereby failed to exercise ordinary care to avoid

obstacles that might be on the street).

It is not plain and palpable that Roberts by ordinary care could have avoided

the consequences of Mulkey’s and CCWA’s alleged negligence. See Pittman v.

Staples, 95 Ga. App. 187, 191 (97 SE2d 630) (1957) (even assuming that driver failed

to keep a lookout ahead of his automobile, the driver’s negligence did not constitute

the sole proximate cause of his collision with the defendant’s truck, which had been

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abandoned in the middle of a busy highway).3 Accordingly, the trial court erred in

finding that Mulkey and CCWA were entitled to summary judgment on the merits.

Judgment reversed in part and vacated in part. Rickman, J., concurs.

Andrews, J., concurs in Divisions 1 and 2 and in the judgment only in Division 3.

3
See also Newsome v. LinkAmerica Express, Inc., 336 Ga. App. 800, 802-803
(786 SE2d 692) (2016) (where, while temporarily blinded by the sun, a motorist
drove into a tractor alleged to be illegally parked on the street, it was an issue for the
jury whether the driver was barred from recovery by contributory negligence); Reed
v. Carolina Cas. Ins. Co., 327 Ga. App. 130, 136 (762 SE2d 90) (2014) (defendants
were not entitled to summary judgment on doctrine of avoidable consequences where
the decedents collided with defendants’ truck, which was illegally parked in the
emergency lane of an interstate entrance ramp at night and in the rain,
notwithstanding that decedent driver was driving too fast for conditions with a blood
alcohol content of .095.); Washington v. Kemp, 97 Ga. App. 235, 239 (102 SE2d 910)
(1958) (where first defendant had parked his car on a state highway, and second
defendant drove into a line of cars stopped behind the first defendant’s car, injuring
plaintiff, the first defendant could not assume that second defendant would discover
and avoid the first defendant’s negligence in blocking the thoroughfare; rather, the
question of whether second defendant could have avoided the negligence was for the
jury).

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