Local Government Law - James E. Elliott Jr.

• Publication year: 2009

Local Government Lawby James E. Elliott Jr.^*

I. Introduction

Because each and every tort occurs somewhere "in a county" and frequently "within the city limits," local governments often find themselves to be reluctant guests in the litigation resulting from such events. Likewise, citizens and public sector employees seem less hesitant to fight city hall than in days past. For these reasons (and others), litigation involving municipalities, counties, and their related entities enjoyed another banner year in Georgia, affording multiple opportunities for the appellate courts to establish new rules of law in the area or to reaffirm (and, occasionally, fine-tune) long-standing rules.

II. Sovereign Immunity: Rumors of Its Demise Have Been Greatly Exaggerated

During the survey period, claimants and their appellate counsel fought fiercely to survive analysis of their cases under various nuances on the theme of governmental immunity. Government actors and their attorneys worked just as aggressively to define their actions as coming within the protections of immunity, thus avoiding the risk of having jurors determine the outcome of their cases. overall, the common law rule fared well.

"The doctrine of official immunity provides that although a public officer or employee may be held personally liable for his negligent ministerial acts, 'he may not be held liable for his discretionary acts unless such acts are wilful [sic], wanton, or outside the scope of his authority.'"¹ Thus, determinative of whether official immunity will provide a shield for the actions of a public actor is first whether the action was ministerial or discretionary in nature.² For the former, a cause of action will lie for the negligent performance thereof, but for the latter, there is generally protection unless the action is accompanied by malice or is ultra vires on the part of the actor.³

In Kennedy v. Mathis,⁴ the road superintendent for Fannin County, Georgia was required, in the scope of his employment, to follow an unwritten county policy to have his employees mow vegetation along county roadways from "ditch to ditch." Kennedy was injured when his motorcycle collided with a vehicle that was backing out of a residence on a county road. The vehicle driver contended that her view was partially obstructed by vegetation growing along the roadway. Based upon this contention, the government employee was invited to become a part of the litigation.⁵

In its analysis of Mathis's role with the county government, the Georgia Court of Appeals noted that Mathis supervised a crew of approximately fifty employees and was charged with maintenance of the county's rights-of-way, albeit with few, if any, written rules, regulations, or policies.⁶ It was the responsibility of the department to mow the roadways twice per year.⁷ There was apparently no further direction from the governing authority of the county.⁸

The court acknowledged its duty to determine whether Mathis's actions were ministerial or discretionary in nature and that the answer to this question would be determinative of the claim.⁹ The court explained:

"A ministerial act is . . . 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 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. Procedures or instructions adequate 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."¹⁰

The court determined that Mathis should be afforded the protection of immunity because of the broad discretion given him to accomplish the semi-annual mowing of county road shoulders, including the plan for doing so,¹¹ the ability to determine what type of equipment to use, and how best to use the resources given by the county.¹² The court stated that "[i]n the absence of any standards or guidelines dictating the manner, method, and time limit for completing the task, Mathis necessarily was vested with discretion."¹³

The court provided insight into factors it seemed to believe necessary to find a duty ministerial in nature, primarily the existence of a policy requiring specific actions under certain situations including time, manner, or method of execution limitations.¹⁴ Because Fannin County gave no such specific instructions to its roads department and superintendent, the court held that the grant of summary judgment to Mathis was proper.¹⁵

An injured party in Todd v. Brooks¹⁶ believed he found a sufficiently specific provision under section 4-3-4 of the Official Code of Georgia Annotated (O.C.G.A.):¹⁷ "It shall be the duty of the sheriff, his deputies, or any other county law enforcement officer to impound livestock found to be running at large or straying."¹⁸ In Todd the plaintiff asserted a claim against a sheriff's deputy who shot and killed a bull found wandering near a public road.¹⁹ Brooks, the deputy, was dispatched to impound the animal, but when he and a passerby attempted to corral the bull into a fenced area, "the bull turned and began to advance toward Brooks with its head lowered, [and] Brooks shot the bull in the head and killed it."²⁰

Holding that the statute in question did not provide a specific manner in which a law enforcement officer must impound a stray animal with clear, definite, and certain procedures, and noting that the duty to impound "was not simple or specific," the court of appeals held that the duty imposed upon the government employee was discretionary and not ministerial, thus affording immunity to the shooting sheriff.²¹ In its analysis, the court reiterated a long-standing principle that immunity is necessary "'to preserve the public employee's independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.'"²² It further recognized that the Georgia Supreme Court had previously held that simply because an action is required by statute, it "is not necessarily 'the equivalent of a ministerial act that deprives the actor of official immunity if done negligently.'"²³

As noted above, even a discretionary act, done with an improper motive or by an unauthorized actor, may lead to liability for the government.²⁴ However, to enable law enforcement officers to perform their duties without the constant threat of lawsuits, it is well-established that public policy considerations often weigh against the imposition of liability for foreseeable harms.²⁵ A lawsuit was filed against an officer in Selvy v. Morrison²⁶ under the belief that the officer's action evidenced an appropriate circumstance to waive this protection.²⁷ Believing that the profane language used by the officer at the time of her arrest²⁸ sufficiently showed actual malice or intent to cause injury, Anita Selvy asserted her claim that immunity would not protect the officer in a discretionary action (namely, making the decision to arrest her), which would be protected but for the egregious behavior of the officer.²⁹

In upholding the grant of summary judgment to the officers, the court of appeals noted that "[e]ven when an arresting officer operates on a mistaken belief that an arrest is appropriate, official immunity still applies."³⁰ Moreover, it held that official immunity survives even when an officer's actions may include slamming against a vehicle, making threats, and using profanity.³¹ The court noted, "'[E]vidence demonstrating frustration, irritation, and possibly even anger is not sufficient to penetrate official immunity.'"³² Having failed to show that Morrison "deliberately intended to commit a wrongful act,"³³ Selvy was unable to pursue her claim.³⁴

The Georgia Supreme Court offered a different perspective in Georgia Department of Transportation v. Heller.³⁵ Heller's wife was killed when the taxicab in which she was traveling spun out of control on a rain-slick highway. Her suit against the City of Atlanta's vehicle-for-hire inspector and other defendants was based upon the inspector giving the vehicle a passing grade despite its tires having little or no tread. Allegedly, the inspector's supervisor knew the inspector had improperly inspected tires, and this constituted a nuisance.³⁶

Discerning the inspector's job duties, the supreme court determined that the duty to inspect the condition of taxi tires was ministerial in nature.³⁷ Because of the inspector's

unauthorized and inadequate inspection that allowed the taxi in question to be cleared for operation, and because [his] actions in this regard violated ministerial duties, [the supreme court held] that the Court of Appeals correctly concluded that [the inspector] was not shielded from potential liability by the doctrine of official immunity.³⁸

III. On the One Hand, Beware the Rules of Law; On the Other, Embrace Them

Even with a cause of action that can successfully be asserted against a local government, its officers, or its employees, a claimant must be cognizant of procedural rules that can determine the success or failure of a claim. "'[O]ur Constitution and law give great protection to counties and cities. As a result, claims . . . sometimes fail because of the technical difficulties associated with prosecuting a claim against a governmental entity.'"³⁹

The purpose of ante litem notice requirements is to afford governments the opportunity to resolve claims without the necessity and expense of litigation, when appropriate.⁴⁰ Such notices serve as a "mini" statute of limitations, and the failure to timely and appropriately submit a notice will result in the dismissal of a claim in its entirety.⁴¹ Enacted many years ago,⁴² the ante litem notice requirement is still...