Is a County Liable When a Tree Falls in the Road and Kills a Motorcyclist?
On the afternoon in November 2016, Clinton Giddens was riding his motorcycle on a road in Jones County when a pine tree located in the right-of-way fell and struck him. He died as a result of the accident.
Ann Etheridge, Clinton’s mother, brought a wrongful death action against Jones County employees John Lowe and Donald Hammock (“the Defendants”), alleging that they were negligent in failing to maintain the roadway where Clinton was killed.
The Policies at the Jones County Public Works Department
At the time of the accident, Lowe was the director of the Jones County Public Works Department (the “Department”), and Hammock was its superintendent. The Department is responsible for the upkeep, maintenance, and inspection of approximately 500 miles of county roadway. The Department has an unwritten policy that employees traveling the county roadways scan the right-of-way and inspect for the presence of visible hazards and report such hazards. However, this policy doesn’t specify how employees are to inspect or assess the trees within and along the county’s rights-of-way. According to Hammock, a visible dead tree hanging over the roadway was considered a hazard that any employee was required to report.
Lowe said in his deposition that if there was a tree in the right-of-way that needed removal, he or Hammock would “assess the tree to see whether or not it’s something” that his crews could handle. Lowe said his crews wouldn’t take action with respect to a dead tree “if it’s not causing a hazard,” because “dead trees are everywhere” and “all dead trees don’t fall just [because] they’re dead.”
Hammock also testified that if a tree was identified as needing to “come down,” he’d take action to address the tree by either having it immediately taken down or placing it on a waiting list to come down based upon his perception of the seriousness of the issue.
Prior to the accident, neither Lowe nor Hammock was aware of this particular tree, nor had they had any complaints from anyone about the tree.
The Plaintiff’s Witness
Laura Wilson testified that she saw the accident that killed Clinton and also observed the specific tree prior to the accident. Wilson testified that 10 days before the accident, she saw the tree leaning over the roadway, approximately “three feet out from that yellow line.” She also said that she observed two men in a Department truck slow and point at the tree that fell and hit Clinton. Wilson said one man pointed at the tree and the other made a nodding gesture.
The Defendants filed a motion in limine to exclude parts of Wilson’s testimony. The trial court held that she could only testify about her observations, including that two Department employees were in a truck in the vicinity of the dead tree, and any conclusions drawn after explaining her factual basis for her opinions. However, the judge expressly prohibited any testimony that the employees were pointing at the specific tree that ultimately fell and caused Clinton’s death or speculation about what the two persons in the vehicle may have been saying to one another.
Defendants Claim Official Immunity
The Defendants also filed a motion for summary judgment asserting official immunity, which the trial court denied. The judge found that there was a question of fact as to whether the Department had “sufficient unwritten policies” creating a ministerial duty for the defendants to act upon, and whether they “actually saw the leaning tree.” As a result, the Defendants argued that the trial court erred by denying this motion because they were entitled to official immunity,. They said that the conduct complained of implicates discretionary, rather than ministerial, functions. Specifically, they contended the trial court erred by finding a fact question on the issue of whether the Department had unwritten policies in place to create a “reporting” duty requiring defendants to act, and failing to identify “simple, absolute, and definite dut[ies]” that the defendants didn’t perform.
Judge Elizabeth Gobeil wrote in her opinion that the doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Public employees, such as the Defendants, may be personally liable for their negligent ministerial acts, but they may not be held liable for discretionary acts unless such acts are willful, wanton, or outside the scope of their authority. The judge explained, quoting a 2009 Georgia Supreme Court decision:
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.
Georgia law states that a ministerial duty may be established by evidence such as a written policy, an unwritten policy, a supervisor’s specific directive, or a statute.
Plaintiff Argues the Department Had a Duty
Etheridge argued that the Defendants had a duty to inspect and ensure that the road was free from hazardous conditions. She said that the evidence showed that Department policy required employees to report hazards to a supervisor so that action could be taken to remove the hazard. Etheridge characterized this reporting duty as “mandatory”—therefore there was no choice or discretion.
But Judge Gobeil said that the operative duty involved here was the duty to inspect and identify a hazard, and the duty to report and remove arises only upon a hazard being identified.
No Department Policy on Trees
The judge found that the Department didn’t have a policy on how trees were to be assessed to determine if they were a hazard or what specific actions an employee should take once a tree was deemed hazardous.
As a result, the acts of inspection and assessment were discretionary as they require the employees to exercise personal deliberation and judgment. The Court of Appeals previously held that inspecting public property for hazards, deciding what constitutes a hazard, selecting appropriate methods for correction, and creating priorities and a schedule for correction, all necessarily involve the exercise of discretion. Moreover, the fact that the Department instructed employees to scan the right-of-way for hazards does not, under the facts present here, convert that job function into a ministerial act because identifying a hazard requires deliberation and judgment. Consequently, Judge Gobeil and the Court of Appeals held that the trial court erred by finding a genuine issue of material fact as to the existence of a ministerial duty by the Defendants. The decision was reversed based on official immunity.
The judgment was reversed. Lowe v. Etheridge, 2021 Ga. App. LEXIS 422 *; 2021 WL 3721570 (Ga. App. August 23, 2021).
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