Kitchen v. CSX Transportation, Inc.
Opinion of the Court
This is a wrongful death action arising out of an automobile accident that occurred in May of 1988 while the deceased, John David Kitchen, was traveling on a county road in Elbert County, Georgia. Plaintiffs, the parents of the deceased and the personal representative of the estate of the deceased, filed this lawsuit against Elbert County; Billy Ray Brown, the Chairman of the Elbert County Board of Commissioners; William B. Smith, the Road Superintendent for Elbert County; and others. The district court found that Elbert County, Brown, and Smith (the “Elbert County defendants”) were entitled to sovereign immunity; accordingly, the district court entered an order granting the Elbert County defendants’ motion for summary judgment and denying plaintiffs’ motion to amend their complaint. We affirm the district court’s grant of summary judgment in favor of Elbert County, but reverse the grant of summary judgment in favor of Brown and Smith. We vacate the district court’s denial of plaintiffs’ motion to amend their complaint and remand the case for further proceedings consistent with this opinion.
BACKGROUND FACTS
At all times relevant to this litigation, Brown has been the Chairman of the Elbert County Board of Commissioners and, as such, has been responsible for the Elbert County roads. Smith has been at all relevant times the Road Superintendent for the county. The accident giving rise to this litigation occurred while the deceased was operating his vehicle on Elbert County Road Number 77. The stretch of road on which the accident occurred had at one time included a timber bridge, which crossed over railroad tracks owned by Seaboard Coast Line Railroad (now CSX Transportation). By 1979, this bridge had been damaged by passing trains and had deteriorated, and the stretch of road on which the bridge lay was no longer necessary to through traffic due to nearby state highway number 72. Accordingly, the railroad and the county entered into an agreement pursuant to which the railroad agreed to remove the bridge and the county agreed to furnish the necessary barricades and signs to indicate that the road was closed.
In 1979, the railroad removed the timber bridge on county road 77, and the bridge was not replaced. Thus, county road 77 terminated on either side of the gulch over which the bridge had run. The regulations governing public roadways in Georgia
In the early morning of May 22,1988, John David Kitchen drove his pick-up truck along county road 77 and over the “rock and dirt” barricade, or what was left of this barricade. The truck plunged over the precipice created by the removal of the timber bridge and onto the railroad track below. Approximately three hours later, a train collided with the truck. Kitchen was pronounced dead at the scene.
Witnesses who observed the scene after the accident attested that there were no signs or traffic control devices of any sort at or near the precipice where the bridge had been.
Several nights after the incident had occurred, I went back to the accident site to observe the appearance of the location in the dark with headlights burning; and personally observed that the vehicle lights would not pick up the fact that there was no bridge in existence, that you could not see that the bridge was out, that the dirt pile in the road gave the appearance that the pavement ended and a dirt road continued, and that no official/approved traffic control devices or barricade existed which would give warning that the bridge was out.13
Plaintiffs filed this action against CSX Transportation (as successor to Seaboard Coast Line Railroad), Elbert County, Brown, Smith, and Landmark American Insurance Company, the insurer for Elbert County. Plaintiffs alleged that defendants “acted knowingly, wantonly, recklessly and with such entire want of care as to raise the presumption of a conscious indifference to the consequences by failing and refusing to place and maintain effective signs, barricades or other warning and protective devices” at the precipice created by the removal of the timber bridge.
After the Georgia state courts resolved the insurance coverage issue, plaintiffs filed a motion to amend their complaint to make “clear and certain that they seek relief ... for acts and conduct of the Defendants involving reckless disregard for the safety of others,”
The district court entered an order denying plaintiffs’ motion to amend their complaint and granting the Elbert County defendants’ motion for summary judgment. The court found that the county had not waived sovereign immunity because there was no liability coverage for plaintiffs’ claims; that Brown’s actions with respect to county road 77 were discretionary (as opposed to ministerial) in nature and, therefore, he was entitled to sovereign immunity; and that there was no evidence that Smith had any duties or responsibilities with respect to the barricades on county road 77 and, even if he did, they were discretionary in nature. The district court entered judgment in favor of the Elbert County defendants pursuant to Fed. R.Civ.P. 54(b), and plaintiffs appealed.
DISCUSSION
A. Summary Judgment for Elbert County
The state of Georgia is immune to suit for any cause of action unless sovereign immunity is expressly waived by constitutional provision or statute. This sovereign immunity extends to counties, as subdivisions of the state.
Notwithstanding the county’s sovereign immunity, plaintiffs argue that they may recover from the county under a nuisance theory. The Georgia Constitution provides that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.”
B. Summary Judgment for Billy Ray Brown
Under Georgia law, whether the sovereign immunity of a county extends to a county employee depends on whether the employee’s alleged negligent acts are ministerial or discretionary in nature; a county employee may be liable for the negligent performance of a ministerial act, but is entitled to immunity for the negligent failure to perform a discretionary duty.
Brown’s allegedly negligent acts in failing to erect and maintain appropriate barricades and signs at the termination of county road 77 are very similar to the negligent acts at issue in Joyce v. Van Arsdale. In Joyce, the county commissioners had decided to close, rather than repair, a bridge. The commissioners instructed Van Arsdale, the county road superintendent, to take the necessary steps to close the bridge. Van Arsdale delegated the responsibility for closing the bridge to Grimes, the assistant road superintendent and supervisor of a work crew. Grimes and his crew constructed a barricade and posted signs along the highway leading to the closed bridge. The plaintiff was injured when she drove her automobile across the bridge and hit the barricade, which had been partially dismantled. The trial court held that Van
Should the county decide when a street should be opened, closed, or repaired, or when a sewer should be built, it is clearly exercising legislative or judicial functions, but when it engages in the work of opening, closing, or repairing a street, or building a sewer, and is thus engaged in the physical execution of the work, it is evidently in the discharge of duties purely of a ministerial nature. It follows that the actual progress of such work by a county is of a ministerial character, and that the duties of a road supervisor in carrying out the physical details of the work are likewise ministerial in nature.... Although Grimes’ acts undoubtedly involved the exercise of some judgment in determining how large the barriers should be and where they should be placed, the execution of a specific task is characterized as ministerial even though the manner in which it is accomplished is left to the employee’s discretion. Accordingly, [Van Arsdale and Grimes] may be held liable if the evidence shows they negligently performed or supervised this work or that they had a duty to inspect the previously erected barricade but were negligent in the performance of this obligation, and summary judgment was thus not appropriate.31
Applying the reasoning of the Georgia Court of Appeals in Joyce, we find that Brown’s allegedly negligent acts in connection with the erection of barricades and signs on county road 77 are ministerial in nature. The county, working -with the railroad, made the decision that the bridge would be removed, and the county agreed to furnish the necessary barricades and signs to indicate that the road was closed. Brown was then charged with carrying out the specific task, that is, the erection of barricades and signs, made necessary by the county’s discretionary decision. This specific task, like the task for which Van Arsdale and Grimes were responsible in Joyce, is of a ministerial character. The final sentence in the quotation from Joyce above leads us to conclude that Brown’s duty, if any, to inspect and maintain the barricades and signs is also of a ministerial character. This conclusion is reinforced by the Georgia Supreme Court’s decision in Nelson v. Spalding County, which, like this case, involved a tort claim against a county official responsible for the county roads. In reversing the trial court’s determination that the official was entitled to sovereign immunity, the Georgia Supreme Court specifically held: “The act of replacing and repairing signs is ministerial and not discretionary in its nature.”
Defendants rely on Gregory v. Cardenaz,
Accordingly, we hold that Brown’s allegedly negligent acts in connection with the erection and maintenance of barricades and signs on county road 77 are of a ministerial character; thus, Brown is not entitled to the defense of sovereign immunity as to plaintiffs’ claims seeking recovery for these allegedly negligent acts. The district court erred in granting summary judgment in favor of Brown.
C. Summary Judgment for William B. Smith
Plaintiffs seek to recover from Smith for the alleged breach of his duty to inspect and maintain the barricades and signs on county road 77. Defendants argue that Smith had no duty with respect to the erection, inspection, or maintenance of these barricades and signs and, therefore, he cannot be liable for their allegedly faulty condition. Specifically, defendants argue that “Smith was appointed Road Superintendent as a reward for supporting Commissioner Brown politically, and was such ‘in name only.’”
Smith has held the title of Road Superintendent for Elbert County since the late 1960s.
D. Denial of Motion to Amend
Plaintiffs moved to amend their complaint to make clear that they seek relief for Brown’s and Smith’s reckless, as well as negligent, conduct. The district court denied the motion. After reviewing plaintiffs’ pleadings filed with the district court, we conclude that plaintiffs may pursue their claims based on Brown’s and Smith’s allegedly reckless conduct without the necessity of amending the complaint. The complaint specifically alleges that defendants acted “recklessly and with such entire want of care as to raise the presumption of a conscious indifference ....”
CONCLUSION
For the reasons stated above, the district court’s grant of summary judgment in favor of defendant Elbert County is AFFIRMED, the district court’s grant of summary judgment in favor of defendants Brown and Smith is REVERSED, and the district court’s denial of plaintiffs’ motion to amend the complaint is VACATED. The case is REMANDED for further proceedings consistent with this opinion.
. Manual on Uniform Traffic Control Devices for Streets and Highways, U.S. Department of Transportation Federal Highway Administration (1978); R3-42 Exh. B. This manual, which is promulgated by the United States Department of Transportation, has been adopted by the Georgia State Transportation Board as the official uniform regulations governing the public roads of Georgia. O.C.G.A. § 32-6-50(a); R3-42 ¶ 7 and Exh. A. Pursuant to state statute, counties are obligated to conform to these regulations in maintaining the public road systems under their control. O.C.G.A. § 32-6-50(c).
. Manual on Uniform Traffic Control Devices (R3-42 Exh. B) at 3F-1 and 6C-4 through 6C-8.
. October 8, 1991, deposition of Brown at 22.
. R2-33, April 18, 1990, deposition of Brown at 22.
. Id. at 23.
. Id. at 22-23.
. October 8, 1991, deposition of Brown at 53; October 8, 1991, deposition of Smith at 66.
. October 8, 1991, deposition of Brown at 53.
. October 8, 1991, deposition of Smith at 42.
. R3-39-5-6; R3-40-4-5; R3-41-8.
. R3-41-8; see also R3-40-6.
. R3-41-9.
. R3-39-6-7.
. Rl-18-9.
. Callaway v. Landmark American Insurance Co., 199 Ga.App. 656, 405 S.E.2d 721 (1991), cert. denied (June 20, 1991).
. R2-30-3-4.
. R3-35-2.
. At the time this appeal was filed, plaintiffs claims against CSX Transportation were still pending before the district court.
. Ga. Const. art. 1, § 2, 119 (amended 1990); O.C.G.A. § 36-1-4 (1993); James v. Richmond County Health Department, 168 Ga.App. 416, 309 S.E.2d 411, 412 (1983).
. Ga. Const, art. 1, § 2, ¶ 9(a) (amended 1990). A constitutional amendment that rewrote this paragraph was approved by a majority of the qualified voters voting in the general election on November 6, 1990. The Georgia Supreme Court has determined that this amendment is to be applied prospectively only. Donaldson v. Department of Transportation, 262 Ga. 49, 414 S.E.2d 638, 641 (1992). Accordingly, the amendment is not applicable to this litigation.
. Dugger v. Sprouse, 257 Ga. 778, 364 S.E.2d 275 (1988).
. Ga. Const, art. 1, § 3, ¶ 1.
. Mires v. United States, 242 Ga. 126, 249 S.E.2d 573, 578-79 (1978); Reid v. Gwinnett County, 242 Ga. 88, 249 S.E.2d 559, 560 (1978).
. DeKalb County v. Orwig, 261 Ga. 137, 402 S.E.2d 513, 514 (1991); Wilmoth v. Henry County, 251 Ga. 643, 309 S.E.2d 126, 127 (1983).
. Wilmoth, 309 S.E.2d at 127; see also Miree, 249 S.E.2d at 578-79. Plaintiffs argue that the inquiry does not end with the rule as stated in Wilmoth and Miree because the Georgia Supreme Court, more recently, has indicated a willingness to reconsider the limitation on a county's liability for a nuisance. Specifically, plaintiffs rely on a footnote in Donaldson, which states, in part: "We have not been asked to reconsider here the continuing authority of Miree v. United States and Wilmoth v. Henry County [citations omitted].” 414 S.E.2d at 642 n. 1. Plaintiffs argue that this statement is sufficient to create an ambiguity in the Georgia law sufficient to justify certifying a question to the Georgia Supreme Court. We disagree. It is unclear whether the quoted statement is a reference to the rule regarding a county’s liability for a nuisance or to other issues in Miree and Wilmoth, such as the waiver of sovereign immunity by purchase of liability insurance. The statement is insufficient to raise a question as to the continuing authority of Miree and Wilmoth and their progeny. Accordingly, certification of a question is not appropriate. See Ryan v. State Farm Mutual Automobile Insurance Co., 934 F.2d 276, 276 (11th Cir. 1991) (certification appropriate when controlling question is "unanswered by controlling precedent of the Supreme Court of Georgia or any other Georgia appellate court").
. Joyce v. Van Arsdale, 196 Ga.App. 95, 395 S.E.2d 275, 276 (1990) (citing Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990)), cert. denied (Sept. 4, 1990).
. Id. (quoting Miree v. United States, 490 F.Supp. 768, 774 (N.D.Ga. 1980)).
. Id.
. Nelson v. Spalding County, 249 Ga. 334, 290 S.E.2d 915, 918-19 (1982).
. Joyce, 395 S.E.2d at 276.
. Id. at 277 (citations and internal quotations and brackets omitted).
.Nelson v. Spalding County, 290 S.E.2d at 919.
. 198 Ga.App. 697, 402 S.E.2d 757 (1991), cert. granted (May 24, 1991), cert. vacated (May 17, 1992).
. See Denson v. City of Atlanta, 202 Ga.App. 325, 414 S.E.2d 312, 314 (1991), cert. denied (Feb. 4, 1992); Carter v. Mayor & Alderman of City of Savannah, 200 Ga.App. 263, 407 S.E.2d 421, 425 (1991); Christensen v. Floyd County, 158 Ga.App. 274, 279 S.E.2d 723 (1981).
. City of Atlanta v. Atlantic Realty Co., 205 Ga.App. 1, 421 S.E.2d 113, 116 (1992); see also Cyr v. Mayor & Aldermen of Savannah, 188 Ga. App. 261, 372 S.E.2d 659, 660 (1988) (noting that operation and maintenance of traffic control devices are not related to maintenance of streets).
. Defendants-appellees brief at 11.
. October 8, 1991, deposition of Smith at 6.
. R2-32, April 18, 1990, deposition of Smith at 27.
. October 8, 1991, deposition of Smith at 86-87.
. October 8, 1991, deposition of Brown at 49.
. Id.
. October 8, 1991, deposition of Smith at 51.
. Id. at 8.
. April 18, 1990, deposition of Smith at 26.
. October 8, 1991, deposition of Smith at 58.
. In their appellate brief, defendants argue that, to the extent plaintiffs seek to recover from Smith for the alleged breach of his duty to develop policies and procedures for the inspection of Elbert County roads, Smith is entitled to the defense of sovereign immunity. Defendants-ap-pellees brief at 33. We do not read plaintiffs' pleadings as seeking recovery for breach of this particular duty, but, to the extent they do, we agree with defendants. See Nelson v. Spalding County, 290 S.E.2d at 919 (county official's decision as to whether to adopt office procedures for the repair and replacement of road signs is discretionary, not ministerial). Thus, to the extent plaintiffs seek to recover for Smith’s alleged breach of his duty to develop policies and procedures (as opposed to his duty to inspect and maintain county roads), Smith is entitled to the defense of sovereign immunity.
. R1-18.
. R3-37-13.
Reference
- Full Case Name
- Ernest Ray KITCHEN and Carolyn D. Kitchen, Individually and as Natural Parents of John David Kitchen, and Ernest Ray Kitchen, as Personal Representative of the Estate of John David Kitchen v. CSX TRANSPORTATION, INC., Etc., County of Elbert, Georgia Billy Ray Brown, Etc. William B. Smith, Etc., Landmark American Insurance Company
- Cited By
- 12 cases
- Status
- Published