Lee Howell v. Ernest Willis

SECOND DIVISION

BARNES, P. J.,

ADAMS and MCFADDEN, 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.

(Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)

http://www.gaappeals.us/rules/

June 29, 2012

In the Court of Appeals of Georgia

A12A0222. HOWELL et al. v. WILLIS. AD-011

ADAMS, Judge.

Lee and Michelle Howell appeal from the trial court’s order granting summary

judgment in favor of Ernest Willis in their suit for damages arising from the

construction of their home. We affirm for the reasons set forth below.

The trial court helpfully summarized the background of this case in its

summary judgment order, as follows:

This case arises from the construction of a residence in Lee County,

Georgia, which is owned by [the Howells]. [The Howells] employed

Defendants Shawn McDonald1 and Shawn McDonald, LLC (hereinafter

1

After this suit was filed, Shawn McDonald, individually, filed a Chapter 7

bankruptcy petition and the matter was stayed as to him. The trial judge’s order

indicates that Shawn McDonald received a discharge in bankruptcy on October 22,

2010. Shawn McDonald, LLC presumably remains, at least, a nominal party to the

referred to collectively as “McDonald”) to construct the residence. [The

Howells] contend that, after the construction of the residence was

completed, and soon after they moved in, problems with the residence

were noted. [The Howells contend] that multiple problems were caused

by inferior work by the building contractor, McDonald. Other problems

were attributed to alleged negligence on the part of Defendant Ernest

Willis (“Willis”), a building inspector for Lee County, Georgia.

Specifically, [the Howells] contend that Willis passed on inspection the

concrete slab on which the house was constructed, which [the Howells]

contend was too low and did not meet the applicable building code. The

summary judgment granted herein pertains only to Willis and the claims

asserted against him in his individual capacity. [The Howells] have

conceded that their claims against Willis in his official capacity are

barred by the doctrine of governmental immunity inasmuch as those

claims are the same as claims against Lee County itself, which employed

Willis. This action has already been dismissed as to the Lee County

Board of Commissioners, which was also named as a defendant . . . .

Accordingly, this appeal addresses only the claims against Willis in his individual

capacity and his assertion of the defense of official immunity as to those claims.

“The doctrine of official immunity, also known as qualified immunity, affords

limited protection to public officers and employees for discretionary actions taken

within the scope of their official authority, and done without wilfulness, malice or

litigation.

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corruption.” (Citation omitted.) Burroughs v. Mitchell County, 313 Ga. App. 8, 10

(720 SE2d 335) (2011). See also OCGA § 50-21-24 (2).

[A] public officer or employee may be personally liable only for

ministerial acts negligently performed or acts performed with malice or

an intent to injure. The rationale for this immunity is 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.

(Footnotes omitted.) Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001).

Thus, “[t]he single overriding factor is whether the specific act from which liability

arises is discretionary or ministerial.” (Punctuation and footnote omitted.) Happoldt

v. Kutscher, 256 Ga. App. 96, 99 (1) (567 SE2d 380) (2002). And the only question

before us is whether Willis’s inspection of the property was a ministerial or

discretionary act.2

The distinction between a ministerial act and a discretionary act is defined as

follows under Georgia law:

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,

2

No evidence exists that Willis acted with malice, wilfulness, or an intent to

injure in inspecting the Howells’ construction.

3

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. Whether the act of a

public official is ministerial or discretionary is determined by the facts

of each individual case, particularly the facts specifically relevant to the

official’s act or omission from which the alleged liability arises.

(Citations and punctuation omitted.) Grammens v. Dollar, 287 Ga. 618, 619–620 (697

SE2d 775) (2010). And where, as here, the facts concerning the government

employee’s behavior are not in dispute, the court determines whether those acts were

discretionary or ministerial in determining whether the employee is entitled to official

immunity. See Nichols v. Prather, 286 Ga. App. 889, 896 (4) (650 SE2d 380) (2007).

And on appeal from the trial court’s summary judgment order, we review the trial

court’s grant of summary judgment de novo to determine whether the evidence

demonstrates a genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. (Citation omitted.) Burroughs v. Mitchell County, 313

Ga. App. at 8-9.

Willis testified in his deposition that he was the Lee County inspector who

inspected the construction on the Howells’ residence. At the time of the deposition

in August 2009, Willis had been working with the Lee County Inspection Department

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for six to seven years and prior to that had worked in commercial construction. Willis

stated that he inspected the foundation on the Howells’ house on May 31, 2007.

During that inspection, he looked at the footing to see if the rebar was properly in

place and measured the footer to make sure that it was 18 inches. He determined that

it was “okay.” Willis also looked at the building slab before it was poured and

measured from the top of the proposed slab to the dirt to determine that it was up to

four inches. He determined that “[i]t was good.” Willis did not recall the number of

places he measured the Howells’ foundation, but it would be more than one. He uses

his own judgment to determine exactly where on a particular slab he needs to

measure.

In addition to the slab and foundation measurements, Willis also confirmed that

McDonald had left clearance around the building. He also walked around the outside

of the foundation to determine if it came above ground “roughly” ten to twelve

inches. Although he could not recall how many different places he measured the

Howells’ foundation, he said it was “good.” Based on this inspection, Willis

determined that the minimum code requirements had been met with regard to the

Howells’ slab and foundation, and he based his issuance of the Certificate of

Occupancy upon this and subsequent inspections.

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In support of his motion for summary judgment, Willis submitted an affidavit

averring that he used his personal judgment and discretion in determining “whether

provisions of the applicable building code were met with respect to the purposes and

intent of the code.” He also indicated that he carried out these inspections without

direct supervision by, or specific direction, from anyone else associated with Lee

County government. Willis also submitted an affidavit from his supervisor Joey

Davenport, Lee County’s Chief Building Official, who confirmed that in conducting

inspections on the Howells’ residence, Willis “was authorized to use his personal

judgment and discretion in determining whether provisions of the applicable building

code were met with respect to the purposes and intent of the code,” including the

methods he employed and the number of inspections he made. Davenport stated that

Willis, therefore, was authorized to conduct the inspections without direct supervision

or specific instructions from him or anyone in the building department. Davenport

also said that Willis had discretion in addressing “any discrepancies he observed,

which, in his opinion, did not significantly deviate from the intent and purposes of the

applicable building code, or where strict interpretation of the literal wording of the

building code would be impractical.”

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In opposition to Willis’s motion, the Howells presented the affidavit of Greg

C. Evans, a licensed professional engineer, who inspected the Howells’ residence on

December 22, 2010, approximately three and one-half years after Willis conducted

his inspection. Evans opined that the concrete slab approved by Willis “was not at a

sufficient elevation to prevent future damage to the residence by surface water,”

which he asserts should have been easily detected by Willis and which should have

prompted him to require that McDonald take corrective measures. He also noted that

the elevation of the Howells’ front yard obviously decreases in elevation toward the

home, which he asserts is also a building code violation.3

The trial court concluded based upon the evidence that Willis’s actions in

inspecting the Howells’ residence were discretionary, not ministerial, in nature and

thus that Willis enjoys “immunity from suit in his individual capacity.”

Willis bore the burden on summary judgment of demonstrating that he was

entitled to official immunity by showing that the specific acts he performed were

discretionary. See Ga. Dept. of Corrections v. Lamaine, 233 Ga. App. 271, 275 (1)

(502 SE2d 766) (1998) (Beasley, J., dissenting). Cf. Sawyer v. Coleman, 245 Ga.

3

Evans also outlined the building codes he asserts were applicable to the

Howells’ residence, but as discussed further below, this portion of the affidavit is

inadmissible hearsay.

7

App. 37, 38-39 (537 SE2d 193) (2000) (in actions under 42 USC § 1983, government

official has burden of demonstrating that alleged violation occurred while she was

acting within the scope of her discretionary authority). And this Court has previously

held in the case of an inspection “the specific act from which liability arises” is not

an inspector’s appearance at a particular site to conduct an inspection. But rather

liability “must arise from the acts [the inspector] was required to perform during the

inspections.” Happoldt v. Kutscher, 256 Ga. App. at 99 (1).

Willis presented evidence showing that he was required to perform inspections,

but that he was granted discretion in determining how he went about conducting

them, the methodology he employed, the number of inspections he made and the

requirements, if any, he placed on contractors afterward. Thus, for example, he was

not required to measure a foundation in a particular place or number of places to

determine if it complied with the applicable codes. He testified that he determined

how and where he would measure based upon his observance of a particular

foundation. Willis had no direct supervision or specific directions in conducting these

inspections. Moreover, he was instructed to use his own judgment in determining

whether any deviations from the code were acceptable and whether any corrective

measures were required. And Willis’s testimony indicates that he used his personal

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judgment and discretion in inspecting the Howells’ property during construction.

Thus, Willis carried his burden on summary judgment of demonstrating that his

actions in conducting this inspection were discretionary and required more than

“merely the execution of a specific duty” required for a ministerial action. See

Standard v. Hobbs, 263 Ga. App. 873, 876 (1) (589 SE2d 634) (2003) (action is

ministerial only if county creates policy requiring certain actions under certain

situations); Happoldt v. Kutscher, 256 Ga. App. at 99-100 (1) (where review officer

was required to exercise personal deliberation and judgment in determining whether

standards were met, his determination was discretionary in nature); Kordares v.

Gwinnett County, 220 Ga. App. 848, 851 (470 SE2d 479) (1996) (absent county

procedure dictating the method of inspection, road official’s alleged negligent

inspection was discretionary).

Once Willis satisfied his burden of establishing his defense of official

immunity,

the burden of production of evidence shift[ed] to the [Howells], who

[could] survive summary judgment in the same fashion that [they] would

survive a motion for directed verdict at trial, i.e., by presenting any

evidence which creates a jury issue on an element of the affirmative

defense.

9

(Citations omitted.) Weston v. Dun Transp.& Stringer, 304 Ga. App. 84, 85 (695

SE2d 279) (2010).

We conclude that the Howells failed to carry their burden. They relied

primarily upon Evans’s affidavit to establish the applicable codes and Willis’s alleged

failure to ensure compliance with them. The trial court, however, found the affidavit

to be “replete with conclusions constituting a mixture of law and fact which are not

admissible as opinion evidence[,]” citing Rios v. Norsworthy, 266 Ga. App. 469, 472

(2) (597 SE2d 421) (2004). See also Lawhorne v. Soltis, 259 Ga. 502, 504 (2) (384

SE2d 662) (1989) (“Opinion evidence is not admissible if the inference drawn is a

mixture of law and fact.”).

Pretermitting whether the trial court accurately characterized Evans’s affidavit

testimony, we conclude that the affidavit was insufficient to establish the content of

the codes applicable to an inspection of the Howells’ residence. Building codes are

not law, and their authority must be established before they are introduced into

evidence:

The general rule that safety codes or rules promulgated by government

departments or voluntary associations for their informative value do not

have the force of law and are not admissible in evidence upon the

subjects to which they relate[] applies to bar the admission of such codes

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or rules on the issue of negligence. . . . The fact that such authority is not

sworn to[] is met in this jurisdiction by the sworn evidence of an expert

witness that such authority is esteemed by the professions as good

authority on the subject. . . .

(Citations and punctuation omitted.) Dayoub v. Yates-Astro Termite Pest Control Co.,

239 Ga. App. 578, 581 (2) (b) (521 SE2d 600) (1999). Evans’s affidavit cites to

Section 18-31 of the Lee County Building Code and states that it adopts by reference

several building codes. The affidavit then purports to quote the 2006 version of one

of those codes, the “International Building Code for One- and Two-Family

Dwellings,” (IRCFD). Even if we were to assume, without deciding, that Evans’s

affidavit could be sufficient to establish that the codes referenced are “good authority

on the subject,” we note that neither Section 18-31 of the Lee County Building Code

nor the sections of the IRCFD upon which Evans relies are attached to his affidavit

or are otherwise part of the record in this case. “Accordingly, the expert’s assertion

regarding the [codes’] contents is inadmissible hearsay and without probative value.

See OCGA § 9–11–56 (e) (‘Sworn or certified copies of all papers or parts thereof

referred to in an affidavit shall be attached thereto or served therewith.’) [Cit.]”

Morgan v. Horton 308 Ga. App. 192, 197 (707 SE2d 144) (2011). While an expert

may offer testimony as to industry practices and whether a particular condition is

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consistent with those practices, an expert affidavit is insufficient to establish the

contents of a particular code or standard unless copies are attached to his affidavit or

are otherwise made part of the record.4 Id. The record in this case, therefore, contains

no admissible evidence of the Lee County Building Code or the IRCFD.

Thus, although the Howells argue that Willis was charged with specific

ministerial tasks dictated by these building codes, they have produced no admissible

evidence of the codes themselves. Without such evidence, the Howells cannot

establish that Willis’s actions in performing the inspections were ministerial in nature.

“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. [Cit.]” (Footnote omitted.) Happoldt v. Kutscher, 256 Ga. App.

98 (1). And even though Willis acknowledged in his deposition that certain minimum

standards exist for construction sites, without admissible evidence of the applicable

rules, we cannot determine whether the standards were so clear, definite and certain

as to merely require the execution of a simple task.

4

“Further, we note that ‘privately established rules are admissible as illustrative

of negligence, but the violation of such a rule is not negligence in and of itself.’

(Citations and punctuation omitted.) Dayoub v. Yates-Astro Termite Pest Control Co.,

239 Ga. App. 578, 581 (2) (b), n. 1 (521 SE2d 600) (1999).

12

This case is distinguishable, therefore, from Heller v. City of Atlanta, 290 Ga.

App. 345 (659 SE2d 617) (2008) upon which the Howells rely. In that case, the

defendant, a city Vehicle for Hire Inspector, had purported to conduct an inspection

on a taxi that subsequently spun out of control due to tires with little or no tread,

resulting in the plaintiff’s death. A state law requires that “[a]ll tires . . . [s]hall have

not less than 2/32 inch tread measurable in all major grooves.” OCGA § 40-8-74. And

this court concluded that “[c]hecking tires for proper tread depth is a simple,

ministerial task.” Id. at 348 (1). Moreover, the inspector stated that he was unaware

of this statutory requirement. Id. at 348-349 (1). Thus, no evidence existed that the

inspector had checked the tires at all to see if they complied with the standard. And

on certiorari, our Supreme Court agreed that the inspection of tires were ministerial

in nature and found that “the inspector had no ‘discretion’ to ignore whether the tires

met this minimum legal requirement and to allow a taxi with inadequate tread on its

tires to be cleared for use on the roads.” Georgia Dept. of Transp. v. Heller, 285 Ga.

262, 267 (2) (674 SE2d 914) (2009).

In Heller, the applicable law required a measurement of 2/32 inch in all major

grooves of a tire, which indicates not only the required measurement, but also where

the measurement must be taken, i. e., the tire’s major grooves. A significant size

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differential exists between a tire tread and the foundation of an entire house, and

without admissible evidence of the code, we have no indication that the building

codes in this case dictated where or how any particular measurement must be taken

on the foundation. Moreover, unlike the inspector in Heller, Willis testified that he

did inspect the property, took measurements at various locations and concluded in his

personal judgment that they were “good.”

Thus, based upon the evidence in the case, the Howells’ allegations that Willis

failed to conduct adequate and proper inspections are merely allegations that Willis

failed to use proper judgment in conducting those inspections. Peele v. Dobbs, 196

Ga. App. 684 (396 SE2d 600) (1990) (building inspector entitled to official immunity

where allegations that he inspected chimney, but failed to use sound judgment merely

alleged a violation of a discretionary function). We conclude, therefore, that Willis

was entitled to official immunity from the Howells’ claims and that the trial court

properly granted summary judgment to Willis on that ground.

Judgment affirmed. Barnes, P. J., and McFadden, J., concur.

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