Ross v. Taylor County , 231 Ga. App. 473 ( 1998 )

Smith, Judge.

Enola Gay Ross and her husband Willie C. Ross brought this action against Taylor County and its road superintendent, Lawrence Short, to recover for injuries to Mrs. Ross and loss of consortium resulting from a single-vehicle accident when Mrs. Ross’s car overturned in a ditch on a county road. The trial court granted the defendants’ motion for summary judgment, and this appeal ensued.

The Rosses alleged in their complaint that the county and Short were negligent in several respects in constructing and maintaining the road, and that this negligence proximately caused Mrs. Ross’s accident. The defendants moved for summary judgment principally on the grounds of sovereign and official immunity,¹ and the issue presented in this appeal is the applicability of those doctrines.

1. The Rosses concede that summary judgment was properly granted in favor of the county on Willie Ross’s claim for loss of consortium because no timely ante litem notice was given to the county on that claim, as required by OCGA § 36-11-1.

2. The Rosses contend the doctrine of sovereign immunity does not apply in this case because the duty breached by the county was a purely ministerial duty. We do not agree.

The accident occurred when Mrs. Ross was driving her car on Hicks Road in Taylor County on a clear afternoon. She was unfamiliar with Hicks Road, and when her car rounded a curve at the end of the paved portion of the road, it skidded into a ditch and flipped over. The record shows that Hicks Road was built by the county pursuant to a public road contract with the State Department of Transportation. The original plans for the road were altered by the county before construction began when a railroad objected because the road encroached on its right-of-way. Pursuant to this change in the plans, a portion of the road was left unpaved.

The contract with the Department of Transportation included a standard provision requiring the construction to be performed in “strict and entire conformity” with the specifications. The Rosses maintain that this provision renders the entire process of constructing the road a purely ministerial function, making the county’s negligence actionable notwithstanding sovereign immunity. Art. I, Sec. II, Par. IX, Ga. Const, of 1983, as amended in 1991; Gilbert v. Richardson, 264 Ga. 744, 750, 752 (452 SE2d 476) (1994); Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512) (1997).

But even if this were true with regard to the actual construction process, the county’s negligence, as alleged by the Rosses, consisted of certain decisions made by the county: to change the plans and not build a portion of the road; to end the paving at a certain location in a certain manner; and to use (and not use) certain warning signs and traffic signals indicating the end of the paved road. Such decisions are the very essence of discretionary acts.²

Discretionary acts “ ‘lie midway between judicial and ministerial ones.’ ” Hennessy v. Webb, 245 Ga. 329, 331 (264 SE2d 878) (1980). They call “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.” (Citations and punctuation omitted.) Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). Hennessy, supra, addressed the immunity of a school principal from liability for injury to a student who fell, and not a county’s liability stemming from road construction. But the Supreme Court noted in Hennessy that “[i]t has been held that there is no liability on the part of a county commissioner in deciding when and how to work on roads because such a decision was discretionary. [Cit.]” Id. It is beyond question that the county’s actions in this case were also discretionary in nature, and the county therefore is immune from liability. The trial court did not err in granting the county’s motion for summary judgment on this ground.

3. 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.” Joyce, supra at 97. Although Short’s duties may have involved the exercise of some degree of judgment, it is clear from Short’s testimony that his work consisted solely of ministerial acts.

Short testified on his deposition that although he had authority to replace traffic signs and signals, he did not make original decisions as to whether or where to place stop signs or traffic signals; he had some discretion, however, to place signs lowering speed limits on blind curves. As to the actual construction of the road, Short and his crew did the subgrading under the supervision of the State Department of Transportation. This work was done by following the grade stakes previously marked out by the Department. Short testified he had absolutely nothing to do with the paving process. Nor did he have any “freedom of action” in the road’s location; he testified that “we built the road in between the stakes.” We intimate no opinion regarding the Rosses’ allegation that Short was negligent in performing his duties. The evidence of record simply persuades us that Short’s actions, like those of the road supervisor in Joyce and unlike those of the county in this case, were ministerial rather than discretionary. The trial court therefore erred in granting Short’s motion for summary judgment on the ground of official immunity.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., Ruffin and Eldridge, JJ, concur. Andrews, C. J., concurs in part and dissents in part. Beasley, J., dissents.

1 They also claimed lack of timely ante litem notice to the county on the consortium claim'. See Division 1, infra.

2 We note that the Georgia Tort Claims Act is inapplicable because this case involves • allegations of negligence only against a county and a county official. OCGA § 50-21-22 (5). See Hemak v. Houston County School Dist., 220 Ga. App. 110,113 (469 SE2d 679) (1996). We therefore need not apply the restrictive definition of discretionary acts supplied by the Georgia Tort Claims Act, OCGA § 50-21-22 (2). Compare Dept. of Transp. v. Brown, 218 Ga. App. 178 (460 SE2d 812) (1995), aff’d 267 Ga. 6 (471 SE2d 849) (1996).