Published on:

The rules of the road are not the same for all vehicles. Emergency vehicles including fire trucks, police cars and ambulances enjoy certain legal privileges. Under Georgia law, when such vehicles are actually “responding to an emergency call,” they can run red lights or stop signs without stopping. However, emergency vehicles must still “slow down as may be necessary for safe operation” and operators have the same duty “to drive with due regard for the safety of all persons” as any other motorist.

Brown v. DeKalb County

Here is a recent example of how Georgia courts apply the emergency vehicle doctrine. This case arises from a 2011 accident in DeKalb County. A county fire truck collided with another vehicle which had five passengers, including three children. The passengers subsequently sued DeKalb County.

The fire truck was responding to an emergency call. The truck’s red emergency lights were flashing, which the firemen said could be seen at least 500 feet away. But it had been raining heavily that day, and the drivers of both vehicles testified they never saw the other prior to impact. Two firemen riding on the fire truck said they did see the other vehicle, but they had no time to warn the driver.

The parties disagreed as to who hit whom. There was no disagreement the fire truck entered the intersection during a red light. The plaintiffs said the fire truck hit their vehicle. Other witnesses at the scene said the car entered the intersection, with a green light, and hit the fire truck. There was also disagreement over how fast the fire truck was traveling. One of the plaintiffs guessed the fire truck was doing at least 60 miles per hour. The firemen and other witnesses testified the truck “was moving at a slow rate of speed.”

Based on all this evidence, the trial court granted summary judgment to the county. But the Georgia Court of Appeals reversed. In a June 17 opinion, a three-judge panel said the disagreement over the fire truck’s speed was enough to defeat summary judgment. If the fire truck was, as the plaintiff testified, traveling through a red-light intersection at 60 to 70 miles per hour, a jury could conclude the driver failed to engage in “safe operation” and exercise “due regard for the safety of all persons.”

The trial judge apparently disregarded the plaintiff’s testimony regarding the estimated speed of the fire truck because she was a layperson without specialized knowledge. But as the Court of Appeals explained in a footnote to its decision, such lay testimony “is admissible under the new Evidence Code” in Georgia. Here, the plaintiff is allowed to offer her own “estimate of the fire truck’s speed [] based upon her first-hand perception of the impact.” The county is free to challenge the plaintiff’s estimate with its own evidence, as it did with the expert reconstruction report. But it is ultimately for the jury to weigh the credibility of the plaintiff’s testimony.

Published on:

On June 15, the Georgia Supreme Court issued an important decision in a case that may affect the rights of uninsured individuals who attempt to contest large hospital bills. Victims of motor vehicle accidents often have to deal with the physical, mental and financial stress of recovering from their injuries. Unpaid medical bills often increase this stress, especially when hospitals file liens against a victim’s insurance benefits or any potential judgment against the persons responsible for the accident.

Bowden v. The Medical Center, Inc.

The victim in this case was a 21-year-old passenger travelling in a rental car one evening in 2011. The car was in an accident, and emergency medical personnel transported the victim to a Columbus hospital. She required surgery for a broken leg, a three-day hospital stay and additional outpatient physical therapy. The hospital ultimately billed the victim over $21,400 for medical services. She did not have any health insurance.

The rental car company offered the victim $25,000, the maximum value of its insurance policy on its rental vehicle. Meanwhile, the hospital filed a lien for its $21,400 bill. The three parties attempted to reach a settlement. The hospital said it would accept approximately $8,300 out of the $25,000 offered by the insurance company to release the lien, but the victim balked.

The hospital then filed what is known as an interpleader action in Georgia state court. Basically, an interpleader is someone who holds property on behalf of another but is unable to determine who to give it to. Here, the hospital paid the $25,000 to the court and asked it to litigate the dispute between the victim and the hospital over the lien.

In court, the victim moved to dismiss the lien, arguing the $21,400 bill was “grossly excessive and did not reflect the reasonable value of the care she received.” The hospital denied its charges were excessive and asked for a judgment to enforce the lien.

The case remains pending before the trial court. The Supreme Court was asked to settle a dispute arising from pre-trial discovery. The victim wants the hospital to produce information regarding its revenues and billing practices with respect to Medicare, Medicaid, and Georgia Blue Cross/Blue Shield, as well as the hospital’s own indigent care program. Essentially, the victim wants to compare what the hospital charges those payers against what it charged her. The hospital argued this information was irrelevant. The trial judge then ordered the hospital to comply. But last year, the Georgia Court of Appeals reversed the judge’s decision, agreeing with the hospital the victim’s information requests were too broad and irrelevant to her claim.

The Supreme Court, however, reversed the Court of Appeals, reinstating the trial judge’s original order compelling production. Justice David E. Nahmias, writing for the Supreme Court, said in the context of discovery, the victim’s requests were “relevant” as they could support her argument the hospital’s $21,400 bill was not reasonable. “The fair and reasonable value of goods and services is often determined by considering what similar buyers and sellers have paid for the same product in the same market,” Justice Nahmias observed. For example, if the requested information indicated insured and Medicaid patients only paid $1,000 for the same medical services the victim received, “a fairminded juror might conclude the reasonable charge for that care was much closer to $1,000 than to the $21,409.59” the hospital billed.

Published on:

In Georgia, product manufacturers are held to a strict liability standard. This means they are responsible for any injuries caused to individuals by a product that is “not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The “proximate cause” requirement is key. Even if a product is clearly defective in its design, the manufacturer is only liable under Georgia law if that defect was the direct cause of the injury. “Direct” in this context means that no intervening act by a third party is responsible for the victim’s injury. For example, if a driver causes an car accident through his or her own negligent driving, the manufacturer of the car cannot be held strictly liable for any design defects that may have contributed to the accident.

A federal appeals court recently explained the application of the proximate cause requirement in a horrific case arising from a truck accident inside a repair shop. Although the victim presented evidence suggesting the truck manufacturer failed to include an important safety feature, the courts held it was immaterial due to an intervening act by the vehicle’s owner.

Weaver v. PACCAR Inc.

The victim in this case was an auto mechanic. While inspecting an air leak in a customer’s truck-tractor, the vehicle ran over his leg, destroying most of its muscle and tissue. The victim required three operations on the damaged leg and continues to require daily medical attention to prevent a potentially deadly infection.

The victim subsequently sued the manufacturer of the truck, claiming its failure to install a “neutral safety switch” in the vehicle was the direct cause of the accident. The accident occurred when the truck’s owner pressed the start button after inadvertently releasing the parking brake, causing the vehicle to move forward. The safety switch is designed to prevent such accidental movement of the truck while it is in neutral. But while the manufacturer makes such switches available as an option on its trucks, it is not a standard feature. Before the district court, a witness for the company said many customers choose not to install the switch as it makes the vehicle more maneuverable in certain situations.

In any event, both the district court and the U.S. 11th Circuit Court of Appeals agreed the manufacturer could not be held liable for the victim’s injuries under Georgia’s strict liability rule. As the Court of Appeals explained, there was no “proximate causal connection” between the manufacturer’s design of the truck and the accident. Even if the victim could prove the design was defective, the “intervening act” of the truck driver in accidentally—and negligently—starting the vehicle destroyed any proximate cause. In this situation, the manufacturer could only be held liable if it could foresee the driver’s negligent operation. Obviously, it could not, the Court of Appeals said, especially since the driver was an experienced operator who possessed a commercial license. In short, a vehicle manufacturer is not responsible when an otherwise qualified driver absent-mindedly causes injury to another person with said vehicle.

Published on:

Winning a personal injury judgment is not always the end of the matter. If a defendant or his insurance company refuses to pay up, a victim may face years of additional court proceedings. In some cases, a victim may even have to fight his or her own insurance company, as a recent Georgia Supreme Court decision illustrates.

Travelers Home & Marine Insurance Company v. Castellanos

A man was seriously injured in a 2009 automobile accident. The other driver was at fault. The victim filed a personal injury lawsuit in Georgia state court. The defendant’s insurance company defended him at trial. Indeed, the defendant never appeared in the case or made any effort to defend himself. Not surprisingly, the jury returned a verdict in favor of the victim and awarded him approximately $3,700 in compensatory damages and another $3,200 in punitive damages.

The victim demanded the defendant’s insurer pay the award. The insurer refused, citing the defendant’s “lack of cooperation” in the trial. The insurer offered to settle for less than the jury’s verdict, arguing its policy with the defendant did not cover punitive damages.

The victim refused to settle and subsequently sought uninsured motorist benefits from his own insurance company, Travelers. Travelers refused, and the victim filed a new lawsuit. The trial court granted summary judgment to Travelers. In 2014, the Georgia Court of Appeals reversed in favor of the victim. The Georgia Supreme Court then agreed to hear Travelers’ appeal.

The legal issue on appeal dealt with the applicable burden of proof. Under the insurance policy and Georgia law, the original defendant’s vehicle is considered “uninsured” only if his insurer “legally denied” coverage. In other words, if the defendant’s insurer did not legally deny coverage, it is technically not “uninsured,” and Travelers is not liable to the victim.

But the question then becomes who is responsible for proving the first insurer “legally denied” coverage? The Court of Appeals was divided on this question. The majority held the trial court should not have required the victim to prove there was a legal denial of coverage; the burden was on Travelers to justify its denial of coverage. The dissent held just the opposite; the burden should be on the victim to prove there was a legal denial of coverage.

The Supreme Court sided with the dissenters. In a unanimous opinion, the justices said since the victim claimed he was entitled to uninsured motorist benefits, the burden was on him to prove the denial of coverage by the original defendant’s insurer “was legally sustainable.” This means the victim must present specific evidence the insurer “reasonably requested” the defendant’s cooperation in the original litigation and that the defendant “willfully and intentionally” refused such requests.

Applying this burden of proof, the Supreme Court concluded the trial court’s original decision granting summary judgment to Travelers was correct. While the Court expressed its sympathy to the victim—who has spent years trying to collect on his judgment—the justices nonetheless found he failed to meet his burden of proof. Indeed, the Court said the victim failed to produce any evidence whatsoever proving the defendant failed to cooperate with his insurer. In a footnote, the Court said what evidence was available suggested the defendant had relocated to Mexico and never received notice of the initial lawsuit.

Published on:

Motor vehicle accidents often leave victims struggling to pay medical bills. Even if victims have insurance coverage through their employer, plan administrators may look for any loophole possible to deny benefits. A recent federal case in Georgia illustrates just how extensive litigation may become in such circumstances.

Faison v. Donalsonville Hospital, Inc.

This case began when a Georgia State Patrol officer attempted a routine traffic stop when he observed a motorcycle traveling 15 miles per hour over the highway speed limit. The motorcycle driver, who apparently feared a stop because he did not have a valid license or proper registration, decided to increase his speed in an attempt to elude the officer. Traveling upwards of 120 miles per hour, the driver lost control his motorcycle while navigating a curve, causing the vehicle to skid off the road. The driver suffered serious injuries as a result of this accident.

The driver was airlifted to a nearby hospital, where he also happened to be an employee. Over the next two months, he amassed more than $480,000 in hospitalization and other medical costs related to the accident. As the driver had health insurance through the hospital, he applied for benefits from the insurance plan’s third-party administrator.

The administrator denied the claim, citing an exclusion for injuries arising from “illegal acts.” Following the accident, Georgia police charged the driver with five separate misdemeanors, including speeding and fleeing the police. Each of these charges carried a maximum possible jail sentence of less than one year. Ultimately, the driver pleaded guilty to all five counts and was only sentenced to probation.

Under the driver’s health insurance plan, the administrator could deny coverage if the employee engaged in “any act or series of acts that, if prosecuted as a criminal offense, a sentence to a term of imprisonment in excess of one year could be imposed.” The administrator found that taking all five misdemeanors together, the maximum possible sentence was greater than one year, and therefore denied coverage. The hospital agreed with the administrator’s decision.

The driver challenged the decision in court. In 2012, a federal judge ruled in the driver’s favor, holding “the Hospital’s decision was ‘de novo wrong’,” because the term “offense” in the illegal acts exclusion only applied to a single instance. The hospital could not simply add up multiple offenses to justify denying coverage. The judge also took note of the conflict of interest, as the hospital was both the driver’s insurer and largest creditor. Accordingly, the judge ordered the hospital to pay the driver the $480,000 in medical costs plus another $55,000 in attorney’s fees.

But the litigation did not end there. After the U.S. 11th Circuit Court of Appeals in Atlanta denied the hospital’s appeal of the judgment, it proceeded to argue before the district court it was entitled to “relief from judgment” because of new information. Specifically, the hospital claimed it had written off the driver’s original medical bills as a charitable donation in June 2010. This, the hospital argued, mitigated any damage award to the driver. The judge disagreed and denied the motion.

The hospital thus appealed for the second time to the 11th Circuit. In an unsigned May 26 opinion, the appeals court again sided with the trial judge. The court said “the Hospital did not show that [the driver] was not still liable” for his full original medical bill. In other words, the charitable credit did not, in and of itself, prove the driver no longer owed the hospital money. And as the trial judge explained, reducing the judgment as the hospital requested would actually violate the terms of the employee’s health insurance policy, which expressly required the hospital to pay out all legitimate medical claims.

Published on:

A federal judge in Augusta recently issued an interesting decision regarding an insurer’s liability for an accident allegedly caused by a drunk driver. The driver was driving his employer’s vehicle off-hours, and the insurer argued it was therefore not required to provide coverage under the employer’s policy.

Great American Alliance Insurance Company v. Hensley

This case arose from a 2012 accident between a truck and a motorcycle. The driver of the truck had consumed “at least four beers” prior to the accident, according to court records. The truck itself belonged to the driver’s employer. The employer had permitted the driver to use the truck for personal matters, and at the time of the accident he was not performing any work-related activity.

The employer’s umbrella business insurance policy incorporated a lengthy “substance abuse policy,” which basically said no employee could work while “under the influence of alcohol or non-prescription drugs.” The policy specifically stated an “impaired” employee could not drive any company-owned vehicle. And of relevance here is the fact that the umbrella policy only covered employees who drove company vehicles “with permission” of the employer.

In 2013, the driver of the motorcycle sued the driver and his employer in Georgia state court, seeking damages for the injuries he suffered in the accident. Just before that lawsuit was tried earlier this year, the employer’s insurance company filed a separate action in federal court, seeking a declaration of its obligations under the umbrella policy. The key legal question was whether or not the truck driver was an “insured” person at the time of the accident.

In a May 6 decision, U.S. District Judge J. Randal Hall ruled the insurance company was not liable for the motorcycle driver’s claims, as the truck driver was in fact not an insured person. Although the driver had the employer’s permission to use the truck on the day in question, his subsequent decision to operate the vehicle after consuming alcohol—in direct violation of the company’s substance abuse policy—nullified that permission.

Under Georgia law, Judge Hall explained, an insurer may rely on an employer’s express policies governing the use of company vehicles in determining whether an employee is an insured person. The judge noted, “An employer’s actions, oral instructions, rules, or regulations thus define when permission arises and establish the scope of permissive use of its vehicles.” Here, the employer’s policy barred operation of company vehicles while under the influence of alcohol. The employee’s violation of this policy therefore rendered his use of the company’s truck unauthorized.

The motorcycle driver, who opposed the insurance company before Judge Hall, argued the exact language of the policy said an employee may not “work” while under the influence, and since the truck driver here was not working, the exclusion should not apply. In other words, the policy did not cover drunk driving while off the clock. Judge Hall rejected this argument, saying it called for a “technical, word-by-word analysis” of the policy, which is not required under Georgia law. What the law does require is a determination of how a “reasonable person” would interpret and apply the policy. And there was no doubt, the judge said, that the company did not allow its employees to drive its trucks at any time while intoxicated.

Published on:

Last September, a federal appeals court in Atlanta asked the Georgia Supreme Court to rule on a question of state law relevant to a federal lawsuit. The Supreme Court delivered its answer in a unanimous May 11 opinion. The underlying case involves an accident victim’s entitlement to underinsured motorist benefits under an insurance policy.

FCCI Insurance Company v. McLendon Enterprises, Inc.

In September 2011, a school bus owned by Evans County collided with a privately owned truck. The truck’s driver, owner and passengers sued the Evans County Board of Education for negligence. Normally, state agencies like a school district enjoy sovereign immunity from civil suits. But the school district here had voluntarily taken out a $1 million liability policy. Accordingly, the school district settled with the defendants for the maximum limit on the policy, and could not be held liable for any amount beyond that.

The driver, who received $650,000 from the school district, then claimed underinsured motorist benefits from the insurance carrier for his employer’s truck. The insurer rejected the claim and sought a declaratory judgment from a federal district court in Georgia holding it was not responsible for providing coverage. The district court rejected the insurer’s argument and said the driver could recover underinsured motorist benefits even though sovereign immunity prevented him from suing Evans County for the “full amount of his damages.”

The insurer appealed to the U.S. 11th Circuit Court of Appeals, which in turn asked the Georgia Supreme Court to clarify state law on this subject. In its May 11 decision, the Supreme Court agreed with the federal district court the driver could recover underinsured motorist benefits under the facts of this case. The insurance policy itself states underinsured motorist benefits are available when the responsible party’s policy does not pay all compensatory damages the insured is “legally entitled to recover.” Here, the insurer argued this was inapplicable, as Evans County’s sovereign immunity meant the driver was not “legally entitled to recover” anything beyond the county’s own insurance policy.

But the Georgia Supreme Court said it didn’t work that way. By purchasing insurance, Evans County waived its sovereign immunity under Georgia law. By doing so it must be “treated as a private person” for purposes of an underinsured motorist claim. “As the District Court stated,” the Supreme Court said, “Evans County’s ability to compensate [the driver] for his damages is limited to the GSBA $1,000,000 insurance policy. Thus, if damages sustained by [the driver] exceed the $650,000 allocated to him under the GSBA policy and any recovery from other applicable insurance bonds or policies, then he can be made whole only by resorting to the [underinsured motorist] insurance policy.”

Previously, the Georgia Court of Appeals held an accident victim could recover underinsured motorist benefits when sovereign immunity totally barred recovery from the negligent party. Here, the Supreme Court said there was no reason not to apply similar reasoning in a case where sovereign immunity only partially barred recovery. As previously noted by the district court, that would create an odd legal incentive for Georgia municipalities not to purchase any liability insurance at all.

Published on:

Bicycle accidents occur all too frequently in Georgia and throughout the country. A 2012 federal study showed that 17 bicyclists died in accidents in Georgia, 11th highest among all states. The Atlanta Journal-Constitution further noted last year there were more than 129 bicycle collisions in Fulton and DeKalb counties alone in 2013, highlighting the potential safety risks of riding a two-wheel vehicle on the road.

But bicycle safety is not a one-way street. In Georgia, bicycles are considered “motor vehicles,” meaning bicyclists must obey traffic signals and follow certain safety practices. A bicyclist can never assume he or she has the right-of-way when riding into traffic. A recent decision by a federal judge in Georgia illustrates the perils for bicyclists who fail to obey traffic laws, then attempt to recover damages when they are subsequently injured in an accident.

Marshall v. Penland

This case involves a 2012 accident at an intersection in Augusta. A car was traveling on a northbound lane of a four-lane road. The car approached an intersection with a flashing yellow traffic light, which indicated vehicular traffic had the right-of-way. The driver noticed a bicyclist “straddling a bicycle near the curb on the far side of the intersection.” As the driver entered the intersection—again, with the right-of-way, the bicyclist attempted to cross the street. Consequently, the car struck the bicycle.

The bicyclist subsequently sued the driver for negligence. Since the bicyclist was not a Georgia resident, the case was heard before U.S. District Judge J. Randal Hall in Augusta. On April 27, 2015, Judge Hall granted the defendant driver’s motion for summary judgment, dismissing the bicyclist’s complaint.

Judge Hall rejected the bicyclist’s argument that the automobile driver “failed to keep a proper lookout” for him, thus causing the accident. To the contrary, all evidence pointed to the bicyclist’s failure to follow applicable traffic laws. “First,” the judge explained, “Plaintiff did not properly come to a complete stop because he was on the sidewalk, not on the roadway as required by Georgia law, prior to entering the northbound lanes of” the street. “Second, there is no evidence that Plaintiff looked for traffic — diligently or otherwise — before crossing the street.” And as noted above, at a flashing yellow-light intersection like the one in this case, the automobile has the right of way, which police at the scene determined the bicyclist violated.

The bicyclist also failed to establish any evidence of negligent driving on the driver’s part. The judge noted weather conditions were clear at the time of the accident, the driver “approached the intersection at a lawful speed, was not using her telephone nor was she otherwise distracted.” Finally, the judge chided the bicyclist for his inconsistent account of the accident. He told medical personnel at the scene he was attempting to ride his bicycle across the intersection. But in his lawsuit, he claimed he was a pedestrian merely walking his bicycle across the street. During proceedings before Judge Hall, he then said he couldn’t recall exactly what happened, but conceded he was “riding his bicycle.”

Published on:

Premises liability is often associated with “slip and fall” cases. For example, if a person slips in a puddle in the middle of supermarket and injures himself, the store can be held liable if it knew about the water and failed to mop it up in a timely fashion. But premises liability may arise from many types of hazards. Indeed, the Georgia Court of Appeals recently addressed a case where the alleged hazard was an unattended child sitting on the floor.

Barbour-Amir v. Comcast of Georgia/Virginia, Inc.

This case began when a woman went to a store in July 2010 to pay her cell phone bill. According to court records, “The store was narrow and crowded,” with several customers waiting in line. The woman waited her turn, proceeded to pay her bill, and as she turned to leave, she “tripped over a young child who was sitting on the floor behind her.” The woman fell to the ground and suffered injuries to her back, knees and ankle.

The woman sued the store, alleging it was liable for the hazard created by the child sitting on the floor. Both the trial court and the Court of Appeals disagreed and awarded summary judgment to the store. Under Georgia law, the appeals court explained, a premises owner is only liable for injury when it has “superior knowledge of a condition” that might expose a person “to unreasonable risk of harm.” And when that potential hazard is created by the “sudden, intervening act of a third party”—such as a child sitting on the floor, then the proprietor is not liable when that third party’s conduct “occurred without warning and was unforeseeable.”

The Court of Appeals said there was no evidence the store in this case had “actual knowledge” about the child sitting on the floor. A customer service representative working in the store on the day in question testified she did not see the child. A security guard also said he could not recall seeing a child. These were the only eyewitnesses who testified in addition to the plaintiff. (Neither the child nor her parent were apparently identified.) The plaintiff argued both the security guard and the customer service representative “should” have seen the child, but the Court of Appeals said that was mere speculation.

In addition to a lack of actual knowledge, the appeals court said there was no evidence the store had “constructive knowledge” of the hazard posed by the child. In this context, constructive knowledge means the hazard posed by the child lasted long enough it would have been discovered by the store had it “exercised reasonable care in inspecting the premises.” Alternatively, the store would have constructive knowledge if there was evidence an employee “was in the immediate vicinity of the hazardous condition” and could have promptly identified and corrected the problem. Neither applied to the facts presented here, the appeals court held, as all evidence suggested the child’s presence was in fact a “sudden and unexpected occurrence,” which the store could not be held liable for.

Published on:

Government employees are not subject to the same standards as members of the general public. As a general rule in Georgia, a state employee enjoys “official immunity” when exercising discretion in the performance of his or her duties. Only when a state employee fails to carry out a specifically mandated “ministerial duty” can an aggrieved party seek damages in court.

Cooley v. Bryant

Recently a divided seven-judge panel of the Georgia Court of Appeals addressed this distinction between ministerial and discretionary acts. The plaintiff in this case is an inmate at a state prison. He suffered serious injuries when he lost control of a lawn mower assigned to him during a work detail. The mower’s “kill switch,” which is supposed to stop the engine in the event of such a loss of control, failed. The plaintiff subsequently sued the corrections officer supervising the work detail for “negligent inspection and negligent maintenance of the lawn mower.”

A trial judge rejected the supervisor’s motion to dismiss based on official immunity. The court held the plaintiff could argue the duty to inspect and maintain the lawnmower was ministerial, not discretionary. The supervisor filed an immediate appeal. By a vote of 5-2, the Court of Appeals upheld the trial judge’s decision on this issue.

Judge William M. Ray, II, writing for the Court of Appeals, noted the evidence presented thus far “shows that a cursory examination of the lawn mower would have revealed that the lawnmower at issue was in need of repair.” There was a factual dispute as to whether the supervisor knew of these issues at the time of the accident. Nonetheless, the supervisor argued his inspection and maintenance of the mower was a “discretionary” act as the Department of Corrections did not have a formal written policy on these subjects. But, Judge Ray said, “there is evidence of an unwritten policy requiring him to take the faulty lawn mower to the maintenance shop for repairs,” if he in fact was aware of the problem. A jury could, then, determine the supervisor violated a ministerial duty if the plaintiff can prove the supervisor knew the lawn mower was broken.

Presiding Judge Gary Blaylock Andrews dissented from Judge Ray’s opinion. Judge Andrews argued the record clearly showed “the alleged negligence involved discretionary action,” which meant the supervisor should receive official immunity. Judge Andrews cited the supervisor’s testimony “he experienced no maintenance problems with the mower at issue” prior to the accident, and he inspected the equipment twice a day even though there was no written policy requiring him to do so. Indeed, Judge Andrews said the absence of a written policy effectively meant any decision the supervisor made regarding equipment maintenance “discretionary.”

Judge Ray, responding to Judge Andrews’ dissent, said that in this case, if the supervisor knew the lawn mower’s kill switch did not work, then he had a ministerial duty to take it in for repairs. Even the supervisor and state officials conceded that without a functional kill switch, the lawn mower “becomes a dangerous piece of machinery.” Judge Ray said the supervisor’s duty was clear at that point: He had to take the lawn mower to a repair shop.