Erickson v. Walker

359 Ga.App. 630

859 S.E.2d 804

ERICKSON

v.WALKER et al.; and vice versa.

A21A0023, A21A0024

Court of Appeals of Georgia.

June 3, 2021

O'Dell O'Neal Hungerford & Blanchard, Justin B. O'Dell, Marietta, Nicholas Matheson Booth, for Appellant for Erickson.

Nelson Mullins Riley & Scarborough, Brandon Oliver Moulard ; Arnold James Lizana III, for Walker et al.

Pipkin, Judge.

In this civil action, Kimberly Erickson sued Jeanne Walker, Rudy Deveaux and Tambra "Tammy" Johnson (collectively "Employees") for negligence, alleging that the Employees breached a ministerial duty to verify automobile insurance of a student seeking a parking permit. In Case No. A21A0023, Erickson appeals from the trial court's grant of summary judgment to Employees, arguing that the trial court erroneously found that she could not prove causation. The Employees filed a cross-appeal, Case No. A21A0024, seeking review of the same order, denying Employees’ motion for summary judgment on the issue of official immunity. For the reasons set forth below, we affirm in part and reverse in part.

On appeal from the grant of summary judgment, legal questions are reviewed de novo, and this Court also conducts a de novo review of the evidence, viewed in the light most favorable to the nonmoving party, to determine if there is a genuine issue of material fact.

(Citation omitted). Barnett v. Caldwell , 302 Ga. 845, 845-856 (I), 809 S.E.2d 813 (2018).

So viewed, the evidence shows on May 10, 2017, Lily Price and Bryce Burrell were both students at Campbell High School. On the day of the accident, Price was standing in her sister's designated parking spot, waiting for a ride home when she was struck by Burrell as he backed his vehicle out of his designated parking spot; the impact knocked Price to the ground, and the vehicle rolled over Price's leg.

Burrell's father owned the vehicle and made it available for him to use. However, after the accident, it was revealed that Burrell was an excluded driver on his parent's insurance policy for the 2007 Ford Taurus. Accordingly, no liability coverage existed.

Erickson, Price's mother, sued¹ Walker, Rudy Deveaux, and Tammy Johnson in their individual capacities based on their respective roles in issuing a parking permit to Burrell. Walker was the principal at Campbell, Deveaux was one of eight assistant principals, and Johnson was a part-time parent liaison and bookkeeper for the school. Neither Walker nor Deveaux had any direct involvement in approving Burrell's parking application, but as administrators their duties involved supervising Johnson and the parking permit application process.

At the start of each semester, students seeking a parking permit at Campbell were required to submit payment, a written application, a valid driver's license, and proof of insurance. The written application included spaces for the applicant to include their personal identifying information, vehicle information, and insurance company and policy number; the bottom portion was reserved for school personnel to complete, and included lines for school personnel to initial, indicating that the insurance and driver's license had been verified. The second page of the application included Rules and Regulations governing on-campus parking (hereinafter "Rules"). Johnson received and reviewed Burrell's application; her initials appear next to the line that read "insurance verified by" on the parking application. Johnson testified in her deposition that she confirmed that the vehicle listed on Burrell's parking application matched the vehicle listed on the insurance policy card.

The Employees moved for summary judgment asserting that they are entitled to official immunity for what they maintain are discretionary acts and that Price's injuries were not proximately caused by the Employees’ conduct in issuing Burrell a parking permit. After a hearing, the trial court found that there was a disputed issue of material fact as to the existence of a policy controlling the issuance of parking permits, deferred classification of the Employees’ conduct as discretionary or ministerial, and denied summary judgment as to the issue of official immunity. However, the trial court granted the Employees’ motion for summary judgment on the issue of causation, finding that they were not the proximate cause of Price's injuries. These appeals follow.

Case No. A21A0024

The Employees argue that there is no genuine issue of material fact as to the existence of a parking permit policy and that no policy or directive created a ministerial duty; thus, they contend they are protected from suit by official immunity.² We agree.

"A suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty." (Citation and punctuation omitted.) Tant v. Purdue , 278 Ga. App. 666, 668, 629 S.E.2d 551 (2006). Erickson does not allege that the Employees acted with malice or intent to injure; thus, this case turns on the classification of the Employees’ duties as discretionary or ministerial.

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, 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.

(Citation omitted.) Roberts v. Mulkey , 343 Ga. App. 685, 687 (1), 808 S.E.2d 32 (2017). Whether an act is discretionary is a legal question for the trial court to resolve. See Nichols v. Prather , 286 Ga. App. 889, 896 (4), 650 S.E.2d 380 (2007). However, when there is a conflict in the evidence or unresolved questions of fact pertaining to immunity, summary judgment is not appropriate. See Glass v. Gates , 311 Ga. App 563, 575-576 (2), 716 S.E.2d 611 (2011) (conflict in defendant's testimony created a fact issue as to existence of an unwritten policy precluding summary judgment).

Erickson does not argue, and there is no evidence in the record that would suggest, that there is a school district manual or any formal training addressing how parking permits are to be issued; instead she argues that the Cobb County Board of Education parking permit application and the accompanying rules and regulations pertaining to on-campus parking constitutes a policy, creating a ministerial responsibility for the Employees to verify students’ proof of insurance. The trial court denied summary judgment, concluding that there was a factual dispute as to the existence of a policy governing a school employee's conduct when issuing a parking permit that the jury must resolve.³ Interestingly, both Erickson and the Employees argue that there is no genuine issue of material fact but instead disagree on whether under those facts Employees have a ministerial duty.

The relevant inquiry is not whether or not the parking permit application and Rules constitute a policy, but rather whether the language used "mandate[s] simple, absolute, and definite action and require[s] the execution of a specific task without any exercise of discretion." Grammens v. Dollar , 287 Ga. 618, 620, 697 S.E.2d 775 (2010). Looking to the record to examine the relevant evidence, Part VIII of the Rules states that "[p]roof of insurance and a current Georgia Driver's License as required by state law shall be required prior to the assignment of a parking space." The parking application is available online and in the front office to students and staff who wish to park a vehicle on campus. As noted above, the application has a line for staff to indicate that they have "verified" an applicant's insurance.

Our Supreme Court has explained:

A ministerial duty may be established by evidence such as a written policy, an unwritten policy, a supervisor's specific directive, or a statute. 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.

(Citations and punctuation omitted.) Roper v. Greenway , 294 Ga. 112, 114-115, 751 S.E.2d 351 (2013). In deciding this question, we find Pearce v. Tucker instructive. In that case, the Supreme Court of Georgia rejected the argument that a police officer's failure to complete a medical screening of a detainee and memorialize it on a form as required by written policy was a breach of a ministerial duty. 299 Ga. 224, 787 S.E.2d 749 (2016). While the policy in Pearce delineated what health information was to be obtained, it did not specify how the screening was to be conducted. Id. at 228, 787 S.E.2d 749. Here, the parking application and accompanying rules were far less specific than those in Pearce . The parking application language does not create a "clear, definite and certain" directive as it is not specific to any particular person or role, the application leaves the term "verify" open to interpretation, and both the application and Rules seem to require the interpretation of what "proof of insurance" means under Georgia law. While a written policy is not the only means of establishing a ministerial duty, Hill v. Jackson , 336 Ga. App. 679, 684 (1) (a), 783 S.E.2d 719 (2016), here the record is absent any indication of a written or unwritten directive guiding how the Employees were to verify "proof of insurance." See Grammens , 287 Ga. at 620-621, 697 S.E.2d 775 (written eye protection policy did not define "explosive materials" thus required teacher to use discretion) (punctuation omitted). Cf. Melton v. McCarthan , 356 Ga. App. 676, 678 (1), 848 S.E.2d 684 (2020) (express written policy directing deputy to report incidents of violence created a ministerial duty). Accordingly, we hold the trial...