Model Briefing for Motion to Dismiss and/or Summary Judgment Opposition in Cases Involving Georgia County
Posted by Wetherington Law Firm | Personal Injury
By: Matt Wetherington
The following is an example from a premises liability case against a county for failing to properly supervise a sidewalk project, resulting in catastrophic injuries to our client who fell while jogging through the unmarked construction project.
PLAINTIFF’S OPPOSITION TO GEORGIA COUNTY’S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT
STATEMENT OF FACTS
Plaintiff Tripped and Fell on the Sidewalks at County Road.
This action arises out of a trip and fall that took place on the sidewalks located at County Road. in Stone Mountain, Georgia. On March 7, 2017, Plaintiff’s foot became caught in a depression in the sidewalk causing Plaintiff to fall and strike her knee on the pavement. The fall seriously injured Plaintiff and caused her to undergo multiple surgeries and years of physical therapy. More than two years after the incident, Plaintiff has yet to fully recover from her injuries. To make matters worse, Plaintiff’s medical providers have advised that, due to the extent of her injuries, Plaintiff will need a total knee replacement surgery.
The Depression Responsible for Plaintiff’s Fall is Not Visible While Jogging
The following circled area on the photograph below is the depression responsible for Plaintiff’s injuries on March 7, 2017:
The depression has a length of approximately 5 inches and, depending on the exact location measured, creates a change in elevation of between 1 and 2 inches. Because of the increased fall risk presented by a sudden change in elevation, DeKalb County’s ordinances, and industry standards, prohibit a change elevation greater than 1/2 of an inch without a suitable transition, such as a ramp or stairway. This hazard is particularly dangerous as, due to the downward slope of the sidewalks, the sidewalk depression is essentially invisible unless you are nearly on top of it.
The difficulty in perceiving this depression is best illustrated by a video demonstrating how the hazard appeared for Plaintiff on March 7, 2017, as she approached County Road.
In the video, a bright pink key chain is placed inside the depression where Plaintiff fell. Both the key chain and the depression disappear from view once a person is five to six steps away from the key chain. Sequential stills from this video are included in the expert report of Dr. Hartman and Dr. Borzendowski:
It is Dr. Hartman and Dr. Borzendowski’s opinion that this sidewalk depression presents a tripping hazard for pedestrians, and that Plaintiff would have been “unable to perceive the change in level created by the missing concrete, which led to her fall.” Defendants have offered no expert testimony to rebut this opinion. Dr. Hartman and Dr. Borzendowski’s findings are also consistent with Plaintiff’s testimony. Although Plaintiff was scanning the ground as she ran, she did not see the depression before she fell. In addition, Plaintiff has no memory of being on County Road. before her fall.
Defendants Caused the Hazard During a Construction Project
Prior to Plaintiff’s fall, Defendants worked on a DeKalb County waterline replacement project on County Rd. between 2013 and 2014. Super was the prime contractor for the project, was contractually obligated to “supervise and direct” all work at the project, and was “solely responsible for the means, methods, Soilhniques, sequences, and procedures of construction.” This included supervising and directing all subcontractors, including The General Group, LLC (“General”) and The SOIL Company, LLC (“SOIL”). During the project, SOIL was responsible for installing silt fencing along the sidewalks for erosion control. Defendants County Employee1 County Employee2, and County Employee3 (“Employee3”) (collectively the “DeKalb Defendants”) worked for DeKalb County and were responsible for overseeing the project. Employee1 was the production control manager, Employee3 was a construction manager, and Employee2 was a construction inspector. Their primary role at the project was to ensure compliance with DeKalb County’s contract. This included making sure that Super was on site, reporting violations of Georgia law, reporting any damage caused by Defendants on the project, and requiring Defendants to repair any such damage.
SOIL Operated Heavy Vehicles on the Sidewalks at County Road.
SOIL admits that, during the waterline replacement project, SOIL installed silt fencing in the area where Plaintiff fell at County Road. Moreover, the project’s daily reports documented that, during the project, SOIL installed silt fencing by driving and/or parking heavy vehicles on the sidewalks:
According to Super, SOIL was prohibited from operating vehicles on the sidewalks as depicted in the January 13, 2014, Daily Report. Super testified that it is unlawful to drive on sidewalks, that SOIL should have instead been in the roadway with a flagger, and that there was no reason for SOIL’s truck to be on the sidewalks as shown in the January 13, 2014, Daily Report. Had Super seen SOIL’s vehicle on the sidewalks as it appears in the January 13, 2014, Daily Report, Super would have told SOIL to get off the sidewalks. Unfortunately, as stated in the January 13, 2014, Daily Report, Super was not on site on January 13, 2014.
The written description in the January 13, 2014, Daily Report places SOIL’s truck within a mile of County Road. The January 13, 2014, Daily Report states that SOIL is preparing to install silt fencing on County Rd. between Point-A and Point-B (the distance between these streets is almost exactly one mile). The intersection of Point-A and County Rd. is at 865 County Rd. The intersection of Point-B and County Rd. is at 401 County Rd. Thus, County Road. is located between Point-A and Point-B, and on January 13, 2014, SOIL was installing silt fencing in the area where Plaintiff fell at County Road. There is no reason to believe that SOIL installed silt fencing at County Road. on January 13, 2014, in a manner that is different than what is shown in the January 13, 2014, Daily Report. Defendants have offered nothing that refutes the photographic evidence that on January 13, 2014, SOIL installed silt fencing along the sidewalks on County Rd. between Point-A and Point-B by parking and/or driving heavy vehicles on the sidewalks.
SOIL Caused Additional Damage to the Sidewalks at County Road.
Pre-suit, Plaintiff retained Professional Engineer David L. Hildebrand to investigate the damage to the sidewalks where Plaintiff fell at County Road. It is Mr. Hildebrand’s opinion that, based on the visible depressions in the sidewalks, and the cracking pattern, the damage to the sidewalks at County Road. was caused “when someone parked a large heavy vehicle on it.” Mr. Hildebrand stated that the damage is consistent with “a three (3) axle dump truck having a gross vehicle weight in excess of 45,000 pounds.”
After Plaintiff filed suit, Defendants alleged that they were not liable to Plaintiff because 2012 Google Street View photographs show that the sidewalks at County Road. were damaged before the 2013-2014 DeKalb County waterline replacement project. To refute these claims, Plaintiff requested that Mr. Hildebrand prepare a supplemental report comparing the condition of the sidewalks at County Road. before and after the project. Mr. Hildebrand found that, between 2012 and 2018, the sidewalks at County Road. suffered significant additional damage.
Below are before and after photos of the sidewalks at County Road. The red arrows indicate new damage that was not present in 2012:
Importantly, Mr. Hildebrand’s supplemental report shows that: (1) the depression responsible for Plaintiff’s fall is not present in the 2012 Google Earth photo relied on by Defendants; and (2) the depression that caused Plaintiff’s fall is only present in the 2018 photograph. After reviewing the condition of the sidewalks at County Road. in 2012 and 2018, and the January 13, 2014, Daily Report, it is Mr. Hildebrand’s opinion that:
(1) The indentations and cracking visible in 2012 support the conclusion that, at some point prior to 2012, a heavy truck was parked on the sidewalk at County Road.;
(2) The SOIL truck shown in the January 13, 2014, Daily Report is of sufficient weight to cause the damage shown in the photos of the sidewalks at County Road.;
(3) The wheelbase of the SOIL truck shown in the January 13, 2014, Daily Report matches the 16-foot spacing of the crack concentrations and indentations in the sidewalks shown in the photos of County Road.;
(4) The additional damage visible in 2018 supports the conclusion that between 2012 and 2018, a heavy truck, similar to the SOIL truck shown in the January 13, 2014, Daily Report, parked on the sidewalks at County Road. and caused additional damage to the sidewalks; and
(5) The sidewalk damage at County Road. was not caused by poor soil conditions and/or SOIL.
Defendants did not provide expert testimony to rebut Mr. Hildebrand’s opinion. Other than the waterline replacement project, DeKalb County has no record of any construction on County Rd. between 2012 and 2018. As such, Plaintiff has provided competent evidence that SOIL’s use of heavy vehicles on the sidewalks at County Road. during the waterline replacement project caused additional damage to the sidewalks, and that Defendants’ failure to exercise reasonable care in directing and/or supervising SOIL caused the sidewalk depression responsible for Plaintiff’s fall on March 7, 2017.
Defendants Violated Multiple Provisions of the DeKalb County Contract
DeKalb County’s contract for the project incorporates “all applicable codes, laws, regulations of the County, State, or Federal agencies which may have cognizance of any party of the Work.” If there is any conflict between the contract and the codes, laws, and regulations, “the codes, laws and/or regulations shall prevail.” The contractual requirement to comply with all codes, laws, and regulations is repeated in several sections of the contract. DeKalb County’s contract for the project further provides that the prime contractor: (1) must have a supervisor on site at all times when work is in progress; and (2) repair any damage to the sidewalks that may result from the work under the contract.
As operating vehicles on sidewalks is unlawful, by permitting and/or directing SOIL to operate vehicles on the sidewalks on County Rd., Defendants violated the provisions of the DeKalb County contract that requires strict compliance with all County, State, and Federal codes, laws, and regulations. O.C.G.A. § 40-6-144 (“[N]o person shall drive any vehicle upon a sidewalk or sidewalk area except upon a permanent or duly authorized driveway”); Because SOIL damaged the sidewalks at County Road., and because Defendants did not repair the damage, Defendants also violated the provisions of the DeKalb County contract that required Super to repair any sidewalks that were damaged during the project. Finally, by not being at the project on January 13, 2014, Super violated the provision of the DeKalb County contract that required Super to have its supervisor on site when work was being performed.
Defendants Directed SOIL to Operate Vehicles on the Sidewalks to Avoid Fines
In the two months preceding SOIL operating vehicles on the sidewalks, Super was issued $4,000 in fines by DeKalb County for blocking traffic on County Rd. Super explained that these fines were issued because, in November and December of 2013, General had closed County Rd. in violation of the contract. After the fines were issued, Super told General that General was responsible for paying the fines. Super instructed General not to incur any additional fines for road closures moving forward. Twenty-seven (27) days later, General’s contractor, SOIL, was photographed driving and/or parking vehicles on the sidewalks of County Rd. This evidence strongly suggests that Defendants instructed their contractors, including SOIL, to operate and/or park vehicles on the sidewalks to avoid additional fines.
The DeKalb Defendants are Not Entitled to Judgment as a Matter of Law
The DeKalb Defendants incorrectly allege that the claims against them are barred by sovereign immunity. Contrary to the DeKalb Defendants’ allegations, the DeKalb Defendants were sued in their individual capacities and, as a matter of law, they are personally liable for their negligent performance of their ministerial duties during the project. The DeKalb Defendants further claim that, if they are not entitled to sovereign immunity, they are entitled to official immunity because: (1) they did not act with malice or intent to cause injury; (2) there was no policy requiring any specific action; and (3) there is no direct evidence that Defendants caused the hazard that injured Plaintiff. The DeKalb Defendants are mistaken as: (1) The DeKalb Defendants had a ministerial duty to enforce the terms of DeKalb County’s contract with Super; and (2) The Dekalb Defendants’ breach of their ministerial duties caused the sidewalk damage that injured Plaintiff.
LEGAL STANDARDS OF REVIEW FOR SUMMARY JUDGMENT OR MOTION TO DISMISS BY GEORGIA COUNTY
When evaluating a motion to dismiss, “the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff.” Ramsey v. New Times Moving, Inc., 332 Ga. App. 555, 557, 774 S.E.2d 134, 136 (2015); Wright v. Waterberg Big Game Hunting Lodge Otjahewita (PTY), Ltd., 330 Ga. App. 508, 509, 767 S.E.2d 513, 515 (2014). A motion to dismiss must be denied “[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant.” Ramsey, 332 Ga. App. at 557; Sherman v. Fulton Cty. Bd. of Assessors, 288 Ga. 88, 89–90, 701 S.E.2d 472, 474 (2010). Stated differently, “[a] motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.” Austin v. Clark, 294 Ga. 773, 774–75, 755 S.E.2d 796, 798–99 (2014); Bourn v. Herring, 225 Ga. 67, 70, 166 S.E.2d 89, 93 (1969).
To prevail at summary judgment under O.C.G.A. § 9-11-56, the moving party must demonstrate that there are no genuine issues of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. D.N. Garner Co. v. Ga. Palm Beach Aluminum Window Corp., 233 Ga. App. 252, 252, 504 S.E.2d 70, 71 (1998); O.C.G.A. § 9-11-56(c). The party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. King v. Crain-Daly Volkswagen, 207 Ga. App. 583, 584, 428 S.E.2d 586, 586 (1993). To warrant the entry of summary judgment, the undisputed facts must show the right of the moving party to a judgment with such clarity as to leave no room for controversy. Allen & Bean, Inc. of Ga. v. American Bankers Ins. Co. of Fla., 153 Ga. App. 617, 618, 266 S.E.2d 295, 297 (1980). Furthermore, “routine issues of negligence cases are generally not susceptible of summary adjudication.” Sutton v. Justiss, 290 Ga. App. 565, 566, 659 S.E.2d 903, 904 (2008). As stated by the Georgia Court of Appeals:
Summary judgment should not be granted in these cases unless the nonexistence of liability is plain, palpable, and indisputable. If reasonable minds can differ on the cause of the injury, the case is not plain, palpable, and indisputable and it should go to the jury. Sutton, 290 Ga. App. at 566.
ARGUMENT AND CITATION OF AUTHORITY
THE DEKALB DEFENDANTS ARE PERSONALLY LIABLE FOR THE NEGLIGENT PERFORMANCE OF THEIR MINISTERIAL DUTIES
Citing to Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994), the DeKalb Defendants wrongly contend that they are entitled to sovereign immunity because the Supreme Court in Gilbert allegedly held that, “Officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them for the performance or nonperformance of their official functions.” The DeKalb Defendants have grossly misquoted the Gilbert case and completely misrepresented its holding. The following is the complete quote from Gilbert, in which the Court quotes from Article I, Section II, Paragraph IX(d) of the Georgia State Constitution:
Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived. Gilbert, 264 Ga. at 752.
The Supreme Court in Gilbert expressly held that, based on subsection (d), “the 1991 amendment provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure.” Gilbert, 264 Ga. at 753. Applying the Supreme Court’s holding in Gilbert, Georgia Courts have repeatedly held that public officers and employees are not entitled to sovereign immunity for the negligent performance, or nonperformance, of ministerial acts:
However, there is no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure. Thus, a public officer or employee may be personally liable for ministerial acts negligently performed, or for ministerial acts he or she negligently failed to perform. Roberts v. Mulkey, 343 Ga. App. 685, 687, 808 S.E.2d 32, 35 (2017); Boatright v. Copeland, 336 Ga. App. 107, 108, 783 S.E.2d 695, 698 (2016) (“But this immunity for discretionary acts does not extend to ministerial acts.”); Georgia Dep’t of Transp. v. Heller, 285 Ga. 262, 267, 674 S.E.2d 914, 918 (2009) (“The Georgia Constitution provides no immunity for ministerial acts negligently performed.”).
The DeKalb Defendants’ allegation that they were sued in their official, as opposed to their individual, capacity is also without merit. First, nothing in Plaintiff’s lawsuit alleges that the DeKalb Defendants were sued in their official capacity. Plaintiff filed suit against, and personally served, the DeKalb Defendants as individuals. Second, the DeKalb Defendants’ implicit argument that they are entitled sovereign immunity because they were acting in their official capacity for DeKalb County has no basis in Georgia law. Public officers and employees, acting in their official capacity, are personally liable for negligent performance of their ministerial duties. Odum v. Harn, 344 Ga. App. 488, 489, 811 S.E.2d 19, 20 (2018) (“Official immunity proSoilts public officers acting in their official capacity from suit unless they negligently perform a ministerial duty or act with actual malice or intent to cause injury while performing a discretionary duty.”); Barnard v. Turner Cty., 306 Ga. App. 235, 237, 701 S.E.2d 859, 862 (2010) (“A suit against a public official acting in his official capacity will be barred by official immunity unless the official negligently performed a ministerial duty or acted with actual malice or an actual intent to cause injury while performing a discretionary duty.”)
Accordingly, as stated in the above-cited cases, the DeKalb Defendants’ claim that they are entitled sovereign immunity because they were acting in their official capacities is disproved by well-established law. Under the Georgia Constitution, and the Supreme Court’s holding in Gilbert, while acting in their official capacities for DeKalb County, the DeKalb Defendants are personally liable for their negligent performance of their ministerial duties. Because the DeKalb Defendants are not entitled to sovereign immunity, and because the DeKalb Defendants are personally liable for the negligent performance of their ministerial duties, the DeKalb Defendants’ Motion to Dismiss should be denied.
THE DEKALB DEFENDANTS HAD A MINISTERIAL DUTY TO ENFORCE DEKALB COUNTY’S CONTRACT WITH SUPER
The DeKalb Defendants allege that their duties at the project were discretionary, as opposed to ministerial, because inspecting government property for hazards “necessarily involves the exercise of discretion.” Defendants’ argument oversimplifies what is, as a matter of law, a highly fact intensive analysis. As explained in detail below, in the present case, the DeKalb Defendants’ admitted that they had a duty to enforce DeKalb County’s contract with Super, and that they had no discretion to ignore this duty. The DeKalb Defendants’ testimony establishes that they had a ministerial duty to enforce DeKalb County’s contract with Super.
The difference between a ministerial and discretionary act is 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.
Cooley v. Bryant, 331 Ga. App. 718, 721, 771 S.E.2d 411, 414 (2015), overruled on other grounds by Rivera v. Washington, 298 Ga. 770, 784 S.E.2d 775 (2016); Vann v. Finley, 313 Ga. App. 153, 158-59, 721 S.E.2d 156, 161 (2011).
This inquiry “depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” Vann, 313 Ga. App. at 159. Moreover, “the line between ministerial and discretionary duties sometimes is a hazy one, and some duties may properly be characterized as ministerial, even though some aspect of the duty may involve an exercise of judgment, and some duties may properly be characterized as discretionary, notwithstanding that some aspect of the duty may involve the performance of a required act.”; Wanless v. Tatum, 244 Ga. App. 882, 884, 536 S.E.2d 308, 310 (2000)(“[T]he fact that an employee, such as Tatum, may have had discretion as to when to conduct an investigation does not change the ministerial nature of the task. 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.”) (cits. omitted).
There is no set method to show the existence of a ministerial duty. For example, a ministerial duty can be established by a statute, construction requirements, or even an unwritten policy. Hicks v. McGee, 289 Ga. 573, 577, 713 S.E.2d 841, 845 (2011) (“[B]ecause the specific actions mandated by O.C.G.A. § 42-5-50 are ministerial and were unambiguously triggered by the amended order, the Court of Appeals correctly concluded that they are not within the scope of official immunity and reversed the trial court’s ruling to the contrary.”); Ross v. Taylor Cty., 231 Ga. App. 473, 474, 498 S.E.2d 803, 805 (1998) (“A difference exists, however, between a decision to build a road or determine how it is to be designed or its general location, on the one hand, and the actual work of constructing it, on the other. The latter has been held to be a ministerial task, and the duties of a road supervisor in carrying out the physical details of the work are likewise ministerial in nature. Although Short’s duties may have involved his exercising some degree of judgment, it is clear from Short’s testimony that his work consisted solely of ministerial acts.”); Cooley, 331 Ga. App. at 722 (“Both Cooley and Tony Adams, the director of the Columbus Parks and Recreation Department, agreed that there was an unwritten policy in the Department that a correctional officer has a duty to take defective equipment to the maintenance shop when it required maintenance.”).
Prior to the DeKalb Defendants’ depositions, when asked to identify statutes, laws, policies, procedures, or employee directives that Defendants violated, Plaintiff identified Dekalb County Code of Ordinances Chapter 23 Article IV Sec. 23-86 which governs encroachment permits for activities on county roads. (Ex. 8 to the DeKalb Defendants’ Statement of Facts). This ordinance requires, among other things, the inspection of work performed on DeKalb County roads. Plaintiff stated in her discovery responses that discovery was ongoing, and that she reserved the right to amend this response as necessary. Plaintiff has since amended her discovery responses to include the specific DeKalb County polices identified during the DeKalb Defendants’ depositions.[1]
During the DeKalb Defendants’ depositions, it was made clear that the policy of DeKalb County for the project was for the DeKalb Defendants to report any violations of DeKalb County’s contract with Super:
Q. Okay. You told me that the inspector’s job just now was to essentially make sure the contract was enforced; is that correct?
A. Yes.
[…]
Q. I am trying to make sure that I understand that you are the one that told County Employee2 that his job is to make sure the contract is enforced?
A. Yes.
[…]Q. I am asking personally. If you are on site on the project and you see a problem that Greg doesn’t see, is it part of your job responsibility to report that problem?
A. Only if it’s something that the contractor did on that contract.
Q. And by something the contractor did on that contract, is that something that violates the contract?
A. Yes. Pertains to the scope of area in their contract only.
[…]Q. All right. So make sure I understand chain of command. I went through this with Greg, too. You see a problem on the project, you are going to report it to Greg, correct?
A. If it’s in the scope of work of the contract.
Q. Something that violates the contract?
A. Uh-huh.
Q. Okay. Is that correct?
A. Yes.
Q. Okay. And when you’re overseeing a project as a construction inspector, how do you know what you’re looking for, like, what are you inspecting for?
A. You have a contract that the contractor signed with the county. Your job is to inspect the work that he’s doing under that contract. That’s the only — that’s your line items to which you hold him accountable to.
[…]Q. So if I understand correctly, the policy is, is that if you see something that’s wrong, you would report it to the Superintendent of the general contractor?
A. Okay. If there is something that is wrong, yes, I would. What they are doing, and it’s not according to the county contract, yes, I would direct it to him.
Q. If you on a project that you are managing see something going wrong, a contractor doing something they’re not supposed to, what do you do?
A. I talk to the, the engineering firm, construction management team that’s overseeing that. Are you aware of this? Are you aware of that? And he’ll say my inspector’s already got that documented and we’re taking care of that already. I step back.
Q. It’s a, essentially it’s a reporting requirement?
A. It’s a reporting, yeah. If I see something wrong, I just don’t jump in. I go talk to my Construction Manager and say, I seen this, are you aware of this, and they’ll say, we’re working on it, the contractor has been aware of it, and they’re working on it.
[…]
Q. You’re saying like it’s the official policy at DeKalb County that if you see a problem you report it to the engineering firm?
A. With my experience working with the other Construction Managers in DeKalb, they basically do the same procedure I use.
Included among the obligations imposed by DeKalb County’s contract was the requirement to comply with “all applicable codes, laws, regulations of the County, State, or Federal agencies which may have cognizance of any party of the Work.” The contract further stated that Super must have a supervisor on site when work was being performed. Employee1 confirmed that, if Super did not have a supervisor on site, it was the DeKalb Defendants’ responsibility to contact Super and make sure that Super’ supervisor was on site:
Q. Were they required to have a superintendent on site under Paragraph 20 of the contract?
A. Yes.
Q. And were they required to have a superintendent on site whenever work was being done?
A. Yes.
[…]Q. Would it be a violation of the contract under your understanding, for Super to not have a supervisor at the project while work is being done?
A. Yes.
[…]Q. If you are on the project and Super doesn’t have a superintendent on the project or supervisor on the project, you said that you would call Super yourself, correct?
A. Yes.
Q. And would you tell Super yourself that Super needed to get a supervisor on the project?
A. I would have called the supervisor myself, Super.
Q. Okay. And would you tell that supervisor to get to the project?
A. I would ask him where he is at.
Q. Okay. And would you tell him to return to the project?
A. I would tell them they need to be on site while work is in progress.
With respect to the sidewalks at the project, DeKalb County’s contract provides that the contractor must repair any sidewalk damage caused by their work on the project. The DeKalb Defendants admit that it was their responsibility to report any sidewalk damage caused by Defendants, and to make sure that Defendants repaired any sidewalk damage caused by their work:
Q. What if they damaged sidewalk that wasn’t intended to be replaced, do they have to fix that under Paragraph 7 of the contract?
A. If we know and have proof that they damaged the sidewalk, we would make them repair it.
Q. Would County Employee2 do the same?
A. Yes. That would be his job.
Q. All right. Let’s say that someone drops something heavy on the sidewalks. Like, you know, there were pipe that had to be brought in, there was equipment that has to be used. You see a contractor drop something heavy on the sidewalk and you witness the sidewalk break, are you putting that in your log?
A. If I see the contractor break the sidewalk, that would be something that I would have to address with him. Yeah, that would be in the log.
Q. And when you’re replacing a water line, if the sidewalk is damaged, like, you see a contractor damaging a sidewalk, do you report it to the engineering firm?
A. You report it to the engineering firm, yes.
The DeKalb Defendants had no discretion to ignore sidewalk damage, or other violations of the contract:
Q. Would you have any discretion to not put it in the log, to let it go?
A. No, because it’s damaged caused by him. And in the contract it says anything that he damages he has to repair.
Consequently, the DeKalb Defendants’ testimony establishes that the DeKalb Defendants had a ministerial duty to report any violations of DeKalb County’s contract with Super. Citing to Hemak v. Houston Cty. Sch. Dist., 220 Ga. App. 110, 469 S.E.2d 679 (1996), and Bitterman v. Atkins, 217 Ga. App. 652, 458 S.E.2d 688 (1995), the DeKalb Defendants disagree and allege that the above-described duties were discretionary. The Dekalb Defendants have misinterpreted these cases. In Hemak and Bitterman, unlike the present case, there was no policy or procedure that created a ministerial duty to inspect the hazards in questions. Hemak, 220 Ga. App. at 113 (“The regulation does not explicitly identify or define any conditions which constitute a hazard, nor does it prescribe a procedure or method for dealing with any hazards found.”); Bitterman, 217 Ga. App. at 654, 458 S.E.2d 688, 691 (1995) (“Although the principal was primarily responsible for ordering the new lockers, once they were delivered, he was not responsible for their installation.”).
A more analogous case involving the inspection of construction work is Joyce v. Van Arsdale, 196 Ga. App. 95, 395 S.E.2d 275 (1990). In Joyce, plaintiff filed suit against “the Emanuel County Board of Commissioners and two county employees, Sam Van Arsdale and Carlee Grimes, to recover for property damage and personal injuries sustained when her car collided with a dismantled barricade in a county road.” at 95. It was undisputed that, “the Board of Commissioners instructed appellee Van Arsdale, the County Road Superintendent, to take the necessary steps to close certain bridges,” including the bridge at issue. Mr. Arsdale delegated this duty to Ms. Grimes, “the Assistant Road Superintendent and supervisor of a work crew.” The trial court granted defendants summary judgment based on official immunity and the Court of Appeals reversed.
The Court of Appeals held that, although the construction work necessarily required some discretion, the County imposed on defendants a ministerial duty to close the bridge, and defendants could be held liable for their negligent performance of this ministerial duty:
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. Likewise, the supervision and control by the road supervisor of a subordinate who is actually running the road machine are of the same character. 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, appellees may be held liable if the evidence shows they negligently performed or supervised this work or that they had the duty to inspect the previously erected barricade but were negligent in the performance of this obligation, and summary judgment was thus not appropriate.
Joyce, 196 Ga. App. at 96. (cits omitted) (emphasis added).
More recent cases involving inspections by public employees have similarly held that, where the duty imposed is ministerial, the fact that an inspection necessarily requires judgment does not make the inspector’s duties discretionary. Vann, 313 Ga. App. at 159-60 (“The fact that some aspects of the manner in which a reconnect inspection is to be performed may be left to the discretion of the inspector does not render the duty to inspect discretionary.”); Georgia Dep’t of Transp. v. Heller, 285 Ga. 262, 267-68, 674 S.E.2d 914, 918-19 (2009) (“Shepard had no ‘discretion’ to ignore whether the tires met this minimum legal requirement and allow a taxi with inadequate tread on its tires to be cleared for use on the roads.”).
The DeKalb Defendants admit that they had a ministerial duty to ensure compliance with DeKalb County’s contract with Super by reporting and documenting any violations of the contract. The DeKalb Defendants had no discretion to ignore this ministerial duty. The contract unambiguously states that the prime contractor must: (1) comply with all County, State, and Federal codes, laws, and regulations; (2) have a supervisor on site when work is being performed; and (3) repair any damage to the sidewalks caused by their work under the contract.
Therefore, by the express terms of the contract, and the DeKalb Defendants’ own admissions, the DeKalb Defendants had a ministerial duty to report: (1) Defendants’ violations of County, State, or Federal codes, laws, and regulations; (2) Super’ failure to have a supervisor on site; and (3) sidewalk damage caused by Defendants’ work. Because it is a violation of Georgia law to operate vehicles on sidewalks, the DeKalb Defendants also had a ministerial duty to report Defendants’ use of vehicles on the sidewalks at the project. See O.C.G.A. § 40-6-144 (“[N]o person shall drive any vehicle upon a sidewalk or sidewalk area except upon a permanent or duly authorized driveway”).
As explained by the Georgia Supreme Court, the DeKalb Defendants’ failure to recognize that it was unlawful to operate vehicles on sidewalks, or their failure to recognize that Defendants damaged the sidewalks, does not make the DeKalb Defendants’ duties discretionary:
The fact that appellants failed to recognize it as a sentencing order cannot serve to change the nature of the order in any manner. Nor did their lack of recognition render discretionary appellants’ mandatory duty to notify the DOC of the new sentence in McGee’s case within 30 working days following their July 20, 2000 receipt thereof. That lack of recognition instead may evidence only the negligent performance of the simple, absolute and definite act imposed on appellants by O.C.G.A. § 42-5-50 to notify the DOC of a sentence within 30 working days following the condition proven here to exist, i.e., the receipt of a sentence affecting appellee McGee.
Hicks, 289 Ga. at 577.
What the DeKalb County Defendants knew, or should have known, regarding Defendants’ violations of DeKalb County’s contract are factual issues to be resolved by a jury, not issues of law. Cooley, 331 Ga. App. at 723 (“[T]here is evidence that Cooley was bound by a ministerial duty to take the lawn mower to the maintenance shop once he realized that it needed repair. A question of fact to be decided by the jury then is this: whether Cooley did, in fact, have knowledge that the lawn mower was defective and needed repair, such that the ministerial duty to take it for repair kicked in.”); Wanless, 244 Ga. App. at 884 (“[A] jury issue exists as to whether Tatum actually received a complaint from Burns prior to the Wanless accident. … [H]is department is responsible for investigating complaints about traffic conditions and about signs or reflectors in curves. Therefore, a jury must decide whether Tatum properly followed department policy for investigating Burns’ complaint….”).
Because the DeKalb Defendants had a ministerial duty to report violations of DeKalb County’s contract, and because whether the DeKalb Defendants had knowledge sufficient to trigger this duty is a question of fact, the DeKalb Defendants’ Motion for Summary Judgment should be denied.
THERE IS SUBSTANTIAL EVIDENCE THAT THE DEKALB DEFENDANTS’ BREACH CAUSED PLAINTIFF’S INJURIES
The DeKalb Defendants allege that, even if they had a ministerial duty, there is no direct evidence that the DeKalb Defendants’ violated this duty. The DeKalb Defendants offer no direct evidence that causation is lacking and wrongly assert that Plaintiff must come forward with direct evidence that the DeKalb Defendants’ acts or omissions caused Plaintiff harm. As held by the Georgia Supreme Court, and the Georgia Court of Appeals, direct evidence is not required to overcome a motion for summary judgment. Patterson v. Kevon, LLC, 304 Ga. 232, 236, 818 S.E.2d 575, 579 (2018) (“Circumstantial evidence, therefore, may be sufficient for a plaintiff’s claim to survive summary judgment, if other theories are shown to be less probable.”); Callaway v. Quinn, 347 Ga. App. 325, 328, 819 S.E.2d 493, 494 (2018) (“We find, however, that circumstantial evidence created a genuine issue of material fact as to whether Quinn was the driver, so we reverse the summary judgment.”).
The possibility that SOIL did not damage the sidewalks at County Road. is not relevant. In cases where the party moving for summary judgment cannot show a lack of causation by direct evidence, the non-moving party is not required to conclusively exclude all other theories to overcome summary judgment. Patterson, 304 Ga. at 236 (“There is no requirement that other theories be conclusively ‘excluded’ as proposed by Big Kev’s and held by the trial court.”). When the moving party relies on a general denial, or circumstantial evidence, to defeat summary judgment, the non-moving party need only present their own circumstantial evidence that is consistent with their theory of the case, and which refutes the assertions raised by the moving party:
The arguments raised by Big Kev’s here and below in support of its motion for summary judgment are not based upon “direct evidence” as that term is defined. Rather, Big Kev’s seeks to use circumstantial evidence of the absence of a causal link between its food and the plaintiffs’ illness: that others present at the dinner did not become ill; that the Pattersons and others at the dinner consumed other food and drink not prepared by Big Kev’s, improperly stored leftovers, and other meals at later times; and that the Pattersons did not begin to feel ill until three to five days after the dinner. Importantly, the evidence produced by Big Kev’s was not uncontradicted. In opposition to the motion for summary judgment, the Pattersons presented evidence which, although circumstantial, contradicted point by point the assertions made in Big Kev’s motion for summary judgment….
[…]While the evidence presented by the Pattersons was circumstantial, it went well beyond the general allegations of the plaintiffs in those decisions, and the circumstantial evidence presented by Big Kev’s failed to rebut it. Under these circumstances, Big Kev’s has failed to demonstrate the absence of evidence of proximate cause. The trial court’s order granting summary judgment on that issue therefore must be reversed.
Patterson, 304 Ga. at 237-40; see also Callaway, 347 Ga. App. at 328. (“Moreover, Quinn conceded that his alternative hypothesis—that a man who briefly stayed in his house took the truck—was mere speculation. Consequently, the circumstantial evidence that Quinn was the hit-and-run driver had probative value to rebut or contradict Quinn’s denial. … The trial court erred in granting summary judgment to Quinn.”).
Once this evidence has been presented, it is for the jury to determine the sufficiency of the evidence. Callaway, 347 Ga. App. at 328; Parke Towne N. Apartments, LLC v. Castro, 349 Ga. App. 692, 697, 824 S.E.2d 730, 735 (2019) (“[T]he sufficiency of the circumstantial evidence as to causation and its consistency with the alternative theories are questions for the jury.”). What the Supreme Court held in Patterson, and the Court of Appeals held in Callaway, is that whether the non-moving party’s theory is more or less probable must be based on the evidence in the record, not the entire universe of theoretical causes. If the moving party is relying on conjecture, or the absence of direct evidence, the non-moving party’s probative circumstantial evidence represents the more probable cause. The jury, not the trial court, must then make the final evaluation of the evidence:
Circumstantial evidence, therefore, may be sufficient for a plaintiff’s claim to survive summary judgment, if other theories are shown to be less probable. There is no requirement that other theories be conclusively “excluded” as proposed by Big Kev’s and held by the trial court. In those circumstances, the question as to the sufficiency of the circumstantial evidence, and its consistency or inconsistency with alternative hypotheses, is a question for the jury. And in the context of a civil jury trial, all other reasonable theories are excluded when proved circumstances of real and actual probative value cause the jury to find that the preponderance of the evidence is in favor of the hypothesis claimed, as against all other reasonable but less probable theories.
Patterson, 304 Ga. at 236. (cits. omitted).
In Patterson, after becoming ill at a wedding rehearsal dinner, plaintiffs filed suit against the caterer that prepared and served the food. at 233. Defendant moved for summary judgment alleging that plaintiffs were “unable to show that their alleged food poisoning was proximately caused by Defendant.” Defendant alleged that plaintiffs “also consumed items prepared by others at the rehearsal dinner,” and “that the [plaintiffs] ate other meals, including fast food” before becoming ill. The trial court granted summary judgment holding “that the [plaintiffs] had failed to exclude every other reasonable hypothesis regarding the cause of their illness….” at 234. Plaintiffs appealed, the Court of Appeals affirmed the trial court’s ruling, and the Supreme Court reversed. at 234-37.
The Supreme Court held that circumstantial evidence “may be sufficient for a plaintiff’s claim to survive summary judgment, if other theories are shown to be less probable,” and that “there is no requirement that other theories be conclusively excluded.” Patterson, 304 Ga. at 236. Because defendant failed to provide direct evidence, and because plaintiffs provided circumstantial evidence that rebutted defendant’s alternative theories, summary judgment was inappropriate. Patterson, 304 Ga. at 237-40. (“In opposition to the motion for summary judgment, the Pattersons presented evidence which, although circumstantial, contradicted point by point the assertions made in Big Kev’s motion for summary judgment. … The trial court’s order granting summary judgment on that issue therefore must be reversed.”).
Similarly, in Callaway, plaintiff filed suit after she was “rear-ended by a man driving a pickup truck owned by [defendant].” at 325. The driver fled the scene, and “the truck was later found, abandoned, in the parking lot of a business.” Defendant, the owner of the truck, “denied driving the truck at the time of the accident.” Defendant alleged that a house guest “took the truck and crashed it into [plaintiff’s] car.” at 326. The trial court granted defendant summary judgment, holding that plaintiff “had pointed to no evidence that [defendant] was driving the vehicle at the time of the accident.” at 325. Plaintiff appealed, and the Court of Appeals reversed, finding that plaintiff’s circumstantial evidence created a disputed issue of fact. at 328. (“[T]he circumstantial evidence that Quinn was the hit-and-run driver had probative value to rebut or contradict Quinn’s denial. … The trial court erred in granting summary judgment to Quinn.”).
Here, as in Patterson and Callaway, Defendants have offered no direct evidence in support of their denial of liability. Just as in Patterson and Callaway, Defendants speculate that other individuals, or entities, were responsible for the damage. Defendants allege that Plaintiff is required to provide direct evidence of Defendants’ liability. As explained by the Court in Patterson and Callaway, direct evidence is not required. Plaintiff need only provide probative circumstantial evidence that refutes Defendants’ general denial and supports Plaintiff’s theory that Defendants caused the sidewalk damage that led to Plaintiff’s injuries.
As in Patterson and Callaway, Plaintiff has provided extensive circumstantial evidence that SOIL caused the hazard that injured Plaintiff. Plaintiff has provided evidence that:
- Super was responsible for supervising and directing all work on the project, including the work performed by SOIL and General;
- Super admits that SOIL should not have operated vehicles on the sidewalks;
- SOIL operated vehicles on the sidewalks when it installed silt fencing along County Rd. on January 13, 2014;
- SOIL parked vehicles on the sidewalks within a mile of County Road. on January 13, 2014;
- SOIL installed silt fencing at County Road. on January 13, 2014;
- The sidewalk depression at County Road. that caused Plaintiff’s fall did not exist before SOIL’s work on County Rd.;
- The sidewalk depression at County Road. that caused Plaintiff’s fall can be seen after SOIL’s work at the project;
- There has been no construction on County Rd. since the 2014 project;
- The damage to the sidewalks at County Road. matches the approximate wheelbase of the truck SOIL used to install silt fencing on County Rd.;
- The truck SOIL used to install silt fencing on County Rd. is capable of causing the sidewalk damage that injured Plaintiff;
- The sidewalk damage that injured Plaintiff was caused by a heavy vehicle on the sidewalks; and
- Poor soil conditions and/or SOIL did not cause the damage to the sidewalks at County Road.
On top of this circumstantial evidence, Plaintiff has also established a clear motive for Defendants’ use of vehicles on the sidewalks. Two months before SOIL was photographed driving vehicles on the sidewalks, Super was fined $4,000 for General blocking traffic on County Rd. Super told General that General had to pay the fines. Super then expressly directed General not to incur any more fines. Less than thirty (30) days later, General’s contractor, SOIL, was found driving on the sidewalks. This evidence all but compels the conclusion that General directed SOIL to move its vehicles to the sidewalks to prevent further fines.
Just as with the sidewalk damage, there is significant circumstantial evidence that the DeKalb Defendants were aware that: (1) Defendants damaged the sidewalks at the project; (2) Defendants were operating vehicles on the sidewalks in violation of Georgia law; and (3) Super did not have a supervisor on site when SOIL was operating vehicles on the sidewalks. Employee2, DeKalb’s construction inspector, was on the project every day. Employee1 and Employee3 cannot exclude the possibility that they were on the project on January 13, 2014, the day that SOIL operated a heavy truck on the sidewalks at County Road. In fact, Employee1 is referenced by name in the January 13, 2014, Daily Report. DeKalb County’s own records for the project show that: (1) SOIL was operating vehicles on the sidewalks within a mile of County Rd. on January 13, 2014; and (2) Super did not have anyone on site on January 13, 2014. These reports are prepared by DeKalb County’s inspectors, and the only DeKalb employees that worked on the project are the DeKalb Defendants.
There is also evidence that the DeKalb Defendants’ failure to report Defendants’ violations of DeKalb County’s contract caused the hazard that is responsible for Plaintiff’s injuries. Employee1 testified that, if the DeKalb Defendants recognized that Super did not have a supervisor on site, the DeKalb Defendants should have contacted Super and forced Super to have a supervisor on site. Super testified that, had Super known that SOIL was operating vehicles on the sidewalks on January 13, 2014, Super would have told SOIL to get off the sidewalks. Employee1 also testified that, if the DeKalb Defendants recognized that Defendants had damaged the sidewalks, the DeKalb Defendants would have reported this damage and made Defendants repair it. Hence, if the DeKalb Defendants followed their ministerial duty and enforced DeKalb County’s contract, the DeKalb Defendants would have prevented the sidewalk damage that caused Plaintiff’s injury.
Considering the circumstantial evidence Plaintiff has presented, and Defendants’ lack of direct evidence, Plaintiff is not required to conclusively disprove Defendants’ alternative hypotheses. Again, the Georgia Supreme Court in Patterson expressly held that the sufficiency of Plaintiff’s circumstantial evidence, and its consistency or inconsistency with Defendants’ alternative theories, is a question for the jury. Patterson, 304 Ga. at 236. Defendants are free to present their alternative theories to the jury, but the jury must ultimately weight the evidence and make the final determination as to causation and liability. (“And in the context of a civil jury trial, all other reasonable theories are excluded when proved circumstances of real and actual probative value cause the jury to find that the preponderance of the evidence is in favor of the hypothesis claimed, as against all other reasonable but less probable theories.”).
CONCLUSION TO MOTION TO DISMISS AGAINST A GEORGIA COUNTY FOR TRIP AND FALL ON SIDEWALK RESULTING IN SERIOUS INJURIES
WHEREFORE, for the above-mentioned reasons, Plaintiff respectfully requests that the Court deny Defendants County Employee1, County Employee2, and County Employee3’s Motion to Dismiss and for Summary Judgment.
WETHERINGTON LAW FIRM, P.C.
/s Matthew Wetherington