supervision of grass cutting is discretionary when done without an “established policy addressing the timing, manner or method of execution of the cutting of the grass”
How later courts described this case
- supervision of grass cutting is discretionary when done without an “established policy addressing the timing, manner or method of execution of the cutting of the grass”
- “an action is ministerial only if the [government employer] creates policy requiring certain actions under certain situations”
- “the supervision of a prisoner work detail is a discretionary function by virtue of which the supervisor is entitled to official immunity”
Written by the judges who cited it.
The opinion
FOURTH DIVISION
DOYLE, P. J.,
ANDREWS, P. J. and BOGGS, J.
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/
March 14, 2013
In the Court of Appeals of Georgia
A12A1783. TAYLOR v. CAMPBELL DO-081
DOYLE , Presiding Judge.
Ramone Taylor, a Sergeant with the DeKalb County Sherrif’s Department,
appeals from the denial of his motion for summary judgment in a slip-and-fall suit
brought by Raquel Campbell, who was on her way to work at the DeKalb County jail.
The trial court denied Taylor’s motion on the ground that issues of fact remained as
to whether he was entitled to official immunity from personal liability. We reverse
because the record lacks facts disputing the evidence that Taylor’s liability, if any, is
premised on his performance of discretionary functions entitling him to official
immunity.
Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law.1 “[O]n appeal from the
denial or grant of summary judgment[,] the appellate court is to conduct a de novo
review of the evidence to determine whether there exists a genuine issue of material
fact, and whether the undisputed facts, viewed in the light most favorable to the
nonmoving party, warrant judgment as a matter of law.”2
So viewed, the record shows that Campbell was injured on her way to work in
a DeKalb County jail facility, when she slipped and fell on a puddle of water upon
exiting an elevator at the jail. It is undisputed that at the relevant time Sergeant
Taylor’s jail duties included supervising four to six detention officers who oversaw
an inmate work crew who performed floor cleaning and maintenance at the jail. It is
further undisputed that Taylor did not himself perform the work of maintaining the
floors; instead he determined “what tasks the detention officers should instruct their
work crew to perform, when they should be performed, and at times how the work
should be done.” He was performing these supervisory duties on the day Campbell
was injured, but he was not responsible for physically performing the work himself.
1
See OCGA § 9-11-56 (c).
2
Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).
2
There is no evidence that Taylor observed or knew about the puddle of water before
Campbell fell.
Based on Taylor’s supervisory role, Campbell sued him in his official and
personal capacity. After Taylor moved to dismiss the suit, Campbell conceded that
Taylor was immune from suit in his official capacity, but she maintained her action
for personal liability, and the trial court denied Taylor’s motion to dismiss. Taylor
then moved for summary judgment, arguing that he was entitled to official immunity
because he was performing discretionary (not ministerial) functions when Campbell
was injured. The trial court denied the motion, giving rise to this appeal.3
The doctrine of official immunity, also known as qualified
immunity, offers public officers and employees limited protection from
suit in their personal capacity. Qualified immunity protects individual
public agents from personal liability for discretionary actions taken
3
Although the order appealed from is interlocutory, we have jurisdiction under
the collateral order doctrine. Like sovereign immunity, official immunity is “an
entitlement not to stand trial rather than a mere defense to liability.” Cameron v.
Lang, 274 Ga. 122, 124 (1) (549 SE2d 341) (2001) (punctuation and footnote
omitted). And this Court has held that an order denying such an immunity claim is
appealable under the collateral order doctrine because “the order . . . conclusively
determine[s] the disputed question, resolve[s] an important issue completely separate
from the merits of the action, and [is] effectively unreviewable on appeal from a final
judgment.” (Punctuation omitted.) Bd. of Regents of the University Sys. of Ga. v.
Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).
3
within the scope of their official authority, and done without wilfulness,
malice, or corruption. Under Georgia law, 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. Thus, damage suits are maintainable in this
[S]tate against government officers and agents for failure to perform
ministerial duties, but such officers and employees are immune from
negligence claims when the acts complained of involve a discretionary
function of an office. The difference between ministerial and
discretionary acts has been explained as follows: 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 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.4
Here, in support of his summary judgment motion, Taylor relied upon his
affidavit, which contains the material following facts:
4
(Punctuation omitted.) Gentry v. Hutchins, __ Ga. App. __, __ (Case No.
A12A2280; decided Feb. 1, 2013), citing Effingham County v. Rhodes, 307 Ga. App.
504, 506-507 (3) (705 SE2d 856) (2010).
4
[A]s a Sergeant with the DeKalb County Sheriff’s Office, I have
worked in the capacity as a supervisor at the DeKalb County Jail with
the responsibility of overseeing a group of (4) four to (6) six detention
officers who in turn oversee an inmate work crew who perform the
general cleanup, painting, trash removal, floor maintenance[,] and
handle other general sanitary matters at the DeKalb County Jail.
As a supervisor, my responsibility is to oversee a group of (4) four
to (6) six detention officers. This responsibility involves making
situational determinations about what tasks the detention officers should
instruct their work crew to perform, when they should be performed[,]
and at times how the work should be done. I do not physically perform
the work of maintaining the floors at the DeKalb County Jail.
On or about [the date in question], I oversaw a group of (4) four
to (6) six detention officers. On or about this date my job responsibilities
did not include physically performing the work involved with
maintaining the floors at the DeKalb County Jail.
On or about [the date in question], I did not observe nor did it
come to my knowledge that a puddle of water existed on the floor
outside of an elevator at the DeKalb County Jail.
At no time whatsoever . . . did I injure or cause harm, nor did I
intend to injure or cause harm to anyone while performing my
responsibility to oversee a group of (4) four to (6) six detention officers
or with regard to any of the responsibilities I performed.
5
The trial court concluded that the affidavit
does not make clear, for instance, whether [Taylor] was on the scene
around the time that the puddle was present or Plaintiff slipped and fell
in a puddle of water on the floor. If Defendant was present, he possibly
was negligent in not seeing the puddle. Merely applying the rubric of
“supervision” to his activities without more detailed testimony does not
establish that Defendant was free of negligence in performing a
ministerial duty.
For this reason, the trial court ruled that Taylor had not shown he was engaged in
purely discretionary functions, so he was not entitled to summary judgment on his
immunity defense.
Nevertheless, “[t]here is no evidence in the record that [Taylor] negligently
performed a ministerial act.”5 The only evidence in the record is that Taylor
supervised officers who supervised inmates who did the floor cleaning work. It is
undisputed that Taylor did not personally perform the work of maintaining the floors,
and there is no evidence that he routinely was required to or did personally inspect
the floors while performing his supervisory function. Despite the absence of evidence
in the record, the trial court speculated that Taylor could have been present and seen
5
Gentry, __ Ga. App. at __.
6
the puddle of water. But “[g]uesses or speculation which raise merely a conjecture or
possibility are not sufficient to create even an inference of fact for consideration on
summary judgment.”6 “[A]lthough the nonmoving party on a motion for summary
judgment is entitled to the benefit of all reasonable inferences to be drawn from the
evidence, such inferences cannot be based on mere conjecture or possibility or upon
evidence which is too uncertain or speculative.”7 Accordingly, the trial court erred by
imputing to Taylor some personal, ministerial involvement in the cleaning even
though the evidence did not support such an inference.
Taylor’s affidavit appropriately describes his role as supervisor as a
discretionary, not ministerial, function. Our courts have previously held that
supervisory actions similar to those described in Taylor’s affidavit lack the simple,
absolute, and definite character of ministerial acts,8 and we find no reason to depart
6
(Punctuation omitted.) Isbell v. Credit Nation Lending Serv., LLC, __ Ga. __,
__ (2) (a) (ii) (735 SE2d 46) (2012).
7
(Punctuation omitted.) Ladner v. Northside Hospital, Inc., 314 Ga. App. 136
(723 SE2d 450) (2012).
8
See, e.g., Parrish v. State, 270 Ga. 878, 879-880 (514 SE2d 834) (1999) (“the
supervision of a prisoner work detail is a discretionary function by virtue of which
the supervisor is entitled to official immunity”); Reece v. Turner, 284 Ga. App. 282
(1) (643 SE2d 814) (2007) (“decisions concerning the supervision of students and
school personnel are considered discretionary, ‘even where specific school policies
7
from that conclusion with respect to Taylor’s role here. Therefore, Taylor’s actions
were discretionary, and he is entitled to official immunity as to any personal liability
arising from Cambell’s complaint.
Judgment reversed. Andrews, P. J. and Boggs, J., concur.
designed to help control and monitor students have been violated.’”). See also
Whitfield v. Brown, 318 Ga. App. 391, 393 (734 SE2d 98) (2012) (“an action is
ministerial only if the [government employer] creates policy requiring certain actions
under certain situations”); Hendricks v. Dupree, 311 Ga. App. 96, 99 (1) (714 SE2d
739) (2011) (supervision of grass cutting is discretionary when done without an
“established policy addressing the timing, manner or method of execution of the
cutting of the grass”).
8