Georgia Department of Transportation v. Heller

BENHAM, Justice,

concurring in part and dissenting in part.

I concur in the majority’s opinion, except as to Division 2. I *269respectfully dissent from Division 2 of the majority’s opinion because I believe Mr. Shepard is entitled to official immunity. When a municipal officer has discretion to complete the tasks given him and he acts within the scope of his authority, then he is entitled to official immunity. Peele v. Dobbs, 196 Ga. App. 684 (396 SE2d 600) (1990). In Peele v. Dobbs, a case analogous to the one at bar, a county building inspector was sued for allegedly conducting a negligent inspection of the construction of a chimney which later caught fire. Because the inspector was acting in his official capacity and he was entrusted with exercising his “sound judgment,” his inspection duties were discretionary and he was entitled to official immunity, absent any showing of actual malice. Id. See also Holloman v. D.R. Horton, Inc., 241 Ga. App. 141 (5) (524 SE2d 790) (1999) (trial court erred when it withheld official immunity from municipal housing inspector who was acting within his authority, had used his judgment in conducting the inspection, and was not guilty of any malice); Stone v. Taylor, 233 Ga. App. 886 (2) (506 SE2d 161) (1998) (inspection of county roads for safety conditions and need for warning signs was a discretionary activity and so county employees were entitled to official immunity). Indeed, the Court of Appeals has unequivocally held that “the acts of inspection, or failure to properly inspect, . . . are discretionary. ...” Kodares v. Gwinnett County, 220 Ga. App. 848, 851 (470 SE2d 479) (1996) (county employees who allegedly failed to properly inspect bridge were entitled to official immunity).

Here, Mr. Shepard was acting in his official capacity to inspect taxi cabs for safety. Id. While OCGA § 40-8-743 sets forth certain guidelines regarding tire tread, there is evidence that Mr. Shepard was not authorized to enforce that statute. In addition, neither OCGA § 40-8-74 nor Atlanta City Code § 162-34 (c) (2) (a)4 sets forth the methodology by which Shepard was to determine the proper tire tread. The facts show that rather than using a measuring instrument, Shepard relied on his training as an inspector and evaluated the taxi’s tires by visual examination. While this may have been illustrative of poor judgment, negligence, and/or poor procedure, it was within Mr. Shepard’s discretion to inspect the tires in this manner in order to determine their proper functionality per Atlanta City Code § 162-34 (c) (2) (a), and so he was entitled to official immunity.5 Peele v. Dobbs, supra, 196 Ga. App. at 684-685; Woodard *270v. Laurens County, 265 Ga. 404 (2) (456 SE2d 581) (1995) (county employees had official immunity although they failed to follow official procedures to replace stop signs). Moreover, inspecting tires was only one aspect of the entire inspection which included checking the proper functioning of brakes, lights, exhaust systems, windows, etc. It would be severely overreaching for courts to determine the applicability of official immunity by picking and choosing which portions of an entire inspection are discretionary and which portions are not. Accordingly, I would reverse the judgment in Case No. S08G1056 and reinstate the trial court’s grant of summary judgment to Mr. Shepard.

Decided March 23, 2009 Reconsideration denied April 10, 2009. Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Robert C. Edwards, Assistant Attorney General, for Department of Transportation. James H. Potts II, Sidney L. Moore, Jr., Schenck & Associates, Hollis C. Cobb, for Heller. Elizabeth B. Chandler, Jerry L. DeLoach, Laura Sauriol, for City of Atlanta. Susan K. Moore, James F. Grubiak, amici curiae.

I am authorized to state that Justice Hines joins in this dissent.

OCGA § 40-8-74 (e) requires tires to have not less than a 2/32 inch tread.

Atlanta City Code § 162-34 (c) (2) (a) required inspection of tires to “ascertain that each is functioning properly.”

I also disagree with the suggestion that Mr. Shepard could not inspect the taxi unless the cab company had first submitted proof of its own inspection. There is evidence that taxis were inspected more than semiannually due to deficiencies that required follow-up inspections *270throughout the year. The taxi driver in this case was often cited for follow-up inspections. Furthermore, the trigger for inspection is only relevant if the municipal inspector fails to inspect when required to do so. See Clive v. Gregory, 280 Ga. App. 836 (635 SE2d 188) (2006). The case sub judice involves the alleged failure to properly inspect. See Rodares v. Gwinnett County, supra, 220 Ga. App. at 851.